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CONTENTS 

INTRODUCTION. — Parental  Authority.  Public  Reg- 
ulation OF  Private  Morals.  Public  Regulation  of 
the  Family.  Crimes  and  Punishments.  Legislative 
Morality.  Legislative  Expedients.  Judicial  Func- 
tions. Executive  Functions.  Checks  and  Bal- 
ances OF  Governmental  Powers.  General  Pur- 
poses OF  Government. 


chapter 

I. 

Unorganized  Tribes. 

II. 

Tribal  Organizations  and  Simple  Despotisms. 

III. 

Pacific  Islands. 

IV. 

Mexico. 

V. 

Peru. 

VI. 

Egypt. 

VII. 

Chaldea,  Babylonia,  Judea  and  Persia. 

VIII. 

Arabia. 

IX. 

India. 

X. 

China. 

XI. 

Japan. 

XII. 

Turkey. 

XIII. 

Greece. 

XIV. 

Rome. 

XV. 

Mediaeval  Europe. 

XVI. 

Russia. 

XVII. 

Italy. 

XVIII. 

Spain  and  Portugal. 

XIX. 

Denmark,  Sweden  and  Norway. 

XX. 

Germany,  Austria,  Hungary  and  Poland. 

XXI. 

Holland  and  Belgium. 

XXII. 

Switzerland. 

XXIII. 

France. 

XXIV.  The  British  Empire. 


402370 


XXV.    United  States. 

XXVI.  Modern  Mexico,  Central  and  South  American 
States. 

GENERALIZATIONS.— Poverty  of  History.  Methods 
OF  Acquiring  and  Conferring  Political  Power. 
Methods  and  Principles  Applicable  to  the  Se- 
lection OF  Public  Officers.  Direct  Legislation. 
Initiative  and  Referendum.  Changes  in  the  Forms 
AND  Functions  of  Governments.  Modern  European 
Constitutions.  Methods  of  Originating  Laws. 
Purposes  of  Laws  and  Motives  Prompting  their 
Enactment.  Punishment.  Taxation.  Personal 
Status.  Family  Relations.  Land  Laws.  Inheri- 
tance. Contracts.  Combinations.  The  Necessity 
FOR  AND  Value  of  Human  Laws.  Voluntary  Ob- 
servance and  Governmental  Enforcement  of  Laws. 

APPENDIX 

Code  of  Hammurabi. — Babylon. 

Laws  of  XII  Tables. — Rome. 

Code  of  Manu. — India. 

Assyrian  Law  Code. 

Institutes  of  Justinian. 

Penal  Code  of  China. 

Civil  Code  of  France. 

Civil  Code  of  Germany. 

Magna  Charta. — England. 

Constitution  of  Poland. 

Constitution    of   Czecho-Slovakia. 

Constitution  of  the  United  States. 

Constitution  of  the  German  Republic. 


INTRODUCTION 

The  wide  research  and  long-  study  preceding-  and  attending 
the  preparation  of  this  work  have  been  prosecuted  for  the 
purpose  of  extracting-  from  the  recorded  experiences  of  the 
various  people  of  the  earth,  in  the  governments  they  have 
had  and  the  laws  under  which  they  have  lived,  such  broad  and 
general  principles  as  may  be  helpful  in  the  work  of  framing 
constitutions  and  formulating  laws.  Neither  government- 
building  nor  law-making  is  a  science.  That  the  moral  law 
has  some  force  and  application  is  generally  admitted,  but 
that  it  may  be  violated,  when  deemed  expedient  to  do  so,  is 
constantly  asserted  in  practice.  What  is  the  moral  law,  and 
where  may  its  precepts  be  found?  Perhaps  most  men  will 
answer,  in  the  sacred  books.  But  it  may  again  be  asked, 
what  books  are  sacred?  To  this  the  Brahman  will  unhesi- 
tatingly answer,  the  Vedas  and  the  code  of  Manu;  the  Bud- 
dhist, the  Greater  or  the  Lesser  Vehicle,  According  to  his  sect ; 
the  Mohammedan,  the  Koran;  the  Jew,  the  Talmud;  the  Par- 
see,  the  Zend-Avesta;  the  Christian,  the  Bible,  and  so  on 
through  less  widely  accepted  codes.  While  much  of  agree- 
ment can  be  found  in  all  of  them,  there  are  direct  antagon- 
isms of  the  utmost  importance. 

Mohammed  taught  war  and  commanded  the  propagation 
of  the  word  by  the  sword.  Christ  forbade  it,  yet  is  recorded 
as  having  said,  "I  came  not  to  send  peace  but  a  sword." 
Manu  taught  caste  and  inequality  among-  men ;  Buddha  equal- 
ity. All  the  Asiatic  codes,  including  the  Christian,  counten- 
ance slavery,  which  the  moral  sense  of  Europe  and  America 
now  condemns.  All  nations  resort  to  war;  yet  its  immorality 
is  its  most  apparent  characteristic.  Every  normal  person 
feels  a  capacity  for  determining  the  moral  quality  of  the  acts 
of  himself  and  of  others,  yet  varying  capacity,  education  and 
surroundings  lead  to  diverse  judgments  on  many  subjects.  A 
definition  of  the  moral  law  as  the  rule  determininu-  right  from 


2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

wrong  merely  leaves  the  question  unanswered.  Nevertheless 
it  would  seem  self-evident  that  there  are  moral  principles  of 
universal  application,  binding  alike  on  all  men,  by  which  the 
quality  of  human  conduct  may  be  tested.  They  attend  and 
inhere  in  our  existence.  The  fact  that  any  such  principle  is 
not  generally  perceived  or  followed  does  not  prove  its  non- 
existence. 

Many  natural  laws  have  remained  concealed  from  man 
through  all  the  ages,  and  moral  laws  are  natural  laws.  The 
progress  of  the  age  is  measured  by  the  discovery  and  applica- 
tion of  natural  laws  to  science  and  art.  Perhaps  a  fair  defi- 
nition of  the  moral  law  would  be,  the  Divine,  the  natural  law, 
which  fixes  the  duty  of  man  to  himself,  to  other  human  beings 
and  to  all  living  creatures.  A  man  living  in  complete  isola- 
tion from  all  other  human  beings  would  owe  himself  the 
duty  to  appropriate  to  himself  evei-y thing  that  would  con- 
tribute to  his  welfare,  comfort  and  highest  development,  tak- 
ing food,  clothing  and  shelter  wherever  he  could  get  the  best. 
But  civilized  man  does  not  live  in  isolation.  His  duty  to 
himself  continues,  but  always  subject  to  the  limitations  re- 
sulting from  the  rights  of  others.  A  duty  and  corresponding 
right  attaches  to  each  one  to  provide  for  himself  and  the 
right  of  each  becomes  a  limitation  on  that  of  every  other 
one.  This  conflict  of  interest  and  loss  of  right  to  freely 
appropriate  whatever  is  at  hand  is  more  than  compensated  by 
the  advantages  of  combined  effort  and  mutual  help.  It  is 
clear  that  the  moral  law  applies  to  all  alike  and  commands  a 
just  sharing  among  the  people  of  all  the  things  that  nature 
provides  as  well  as  of  the  fruits  of  their  united  efforts.  In  the 
division  of  the  bounties  of  nature  equality  appears  to  be  the 
natural  law,  but  equality  of  opportunity  to  take  every  kind 
of  natural  product  and  resource  in  a  densely  peopled  world  is 
impossible.  Human  activities  are  largely  applied  to  the  search 
for  and  gathering  of  useful  things  from  the  surface  of  the 
earth  and  the  mines  beneath.  The  value  of  the  things  gained 
by  these  activities  depentls  in  great  measure  on  the  labor  ex- 
pended in  acquiring  them.  There  is  difficulty  in  separating 
the  added  labor  value  from  that  of  the  thing  as  it  was  before 


INTRODUCTION  3 

man  touched  it.  Combination  of  effort  for  common  ends 
implies  the  assignment  to  each  of  a  special  part  of  the  work. 
Specialization  requires  the  assignment  to  each  of  the  task 
for  which  he  is  best  qualified.  Division  of  labor  calls  for 
the  exchange  of  products.  Advancing  civilization  is  attended 
by  increased  combination  of  effort,  division  of  labor  and  spe- 
cialization of  occupation.  Amid  the  complexity  of  modern 
business  conditions  the  applicability  of  fundamental  moral 
principles  to  the  rights  and  duties  of  each  member  of  society 
is  obscured  and  often  lost  to  view.  In  the  division  of  labor 
inequalities  of  burden  inevitably  arise.  In  the  distribution  of 
the  benefits  of  combined  eft'ort  equality  of  share  to  each  is 
difficult  of  attainment,  if  not  impossible.  The  necessity  for 
direction  and  leadership  implies  a  degree  of  mastery,  which 
may  be  carried  so  far  as  to  become  oppression.  Out  of  a 
disregard  of  duty  and  of  the  rights  of  others  come  oppres- 
sion, strife  and  crime.  In  an  ideal  state  the  law  would  op- 
pose its  force  to  all  unsocial  and  immoral  conduct.  To  give 
positive  sanction  to  conduct  that  violates  ethical  principles  is 
inexcusable.  Practical  men  do  not  expect  an  ideal  system  of 
laws  completely  enforced,  but  a  nearer  and  nearer  approxi- 
mation to  the  moral  law. 

Let  us  notice  a  few  of  the  customs  that  have  long  been 
sanctioned  by  the  laws  of  great  nations.  In  China  the  in- 
feriority and  servitude  of  the  females  to  the  males  lies  at 
the  foundation  of  the  whole  social  system.  The  wife  and 
daughter  may  be  abused,  overworked  and  mistreated  by  the 
husband  and  father  almost  at  will.  The  power  of  the  father 
over  his  sons  is  also  very  great.  Prior  to  the  late  revolution 
the  Imperial  Clan  and  descendants  of  Confucius  constituted 
privileged  classes  and  were  supported  from  the  taxes  gath- 
ered from  the  toiling  multitude. 

In  India,  from  remote  ages,  the  rigid  rules  of  caste  have 
kept  the  lower  orders  in  enforced  ignorance  and  servitude  to 
the  ruling  classes.  Denial  of  the  right  to  engage  in  any  busi- 
ness or  calling,  other  than  those  assigned  to  his  caste,  has 
deprived  the  members  of  all  castes  of  that  personal  freedom 
of  effort  so  essential  to  high  development.     Rank  injustice 


4  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  disregard  of  natural  rights  lie  at  the  base  of  the  whole 
system. 

In  Mohammedan  countries  the  Koran's  precepts  allow  poly- 
gamy, and  far  worse  than  this,  command  the  propagation  of 
religion  by  war,  the  most  immoral  of  all  concerted  efforts  of 
men.  The  errors  and  falsehoods  of  the  Koran  are  taught  as 
divine  revelation,  and  all  inquiry  tending  to  replace  them  with 
truth  is  stifled. 

Throughout  all  the  history  of  Rome  slavery  was  recognized 
and  the  machinery  of  the  government  was  employed  to  en- 
force the  dominion  of  the  masters.  Much  of  the  learning  of 
the  great  jurists  consists  in  rules  governing  the  relations  of 
masters  and  their  slaves,  and  determining  the  status  of  persons 
as  citizens,  coloni,  freedmen  and  slaves.  Even  in  our  own 
land,  within  the  memory  of  the  writer  and  those  of  his  genera- 
tion, slavery  was  the  most  important  institution  in  nearly  one 
half  of  the  Republic.  No  law  can  be  a  greater  departure  from 
the  moral  law  than  that  which  sanctions  slavery  and  allows  one 
man  to  compel  another  to  serve  him  according  to  his  arbitrary 
will  and  take  all  the  proceeds  of  his  labor  to  use  as  he  pleases. 
Nothing  can  better  illustrate  the  tendency  to  depart  from  the 
moral  law  in  framing  human  laws  than  the  history  of  the  law 
of  slavery.  The  feudal  system  of  land  tenure  after  the  decline 
of  the  Roman  Empire  worked  out  results  similar  to  slavery. 

Without  stopping  at  this  time  to  apply  moral  tests  to  the 
leading  principles  of  modern  law  in  Europe  and  America, 
let  us  consider  what  influences  produced  the  laws  above  men- 
tioned. Clearly  the  authors  of  such  laws  were  not  guided  in 
their  work  by  any  moral  principles,  for  the  injustice  of  them 
is  obvious.  The  universal  motive  has  been  advantage  for 
the  ruling  class,  and  the  excuse  for  taking  the  advantage  has 
been  expediency  or  necessity.  During  periods  of  war  or  civil 
discord  men  seek  to  assure  their  own  safety  by  the  destruction 
of  their  enemies.  The  victors  in  the  contest  seldom  give  nice 
consideration  to  moral  rules  in  imposing  term  on  the  van- 
quished. Primitive  tribes  either  kill  or  enslave  their  captives. 
Slaverv  has  its  root  in  war.     Greeks  and  Romans,  though  ad- 


IxNTRODUCTION  S 

mitting  the  immorality  of  slavery,  enslaved  their  captives  and 
always  maintained  the  dominion  of  the  masters  by  law.  In 
the  conquest  of  India  by  the  Aryan  invaders  the  subjugated 
natives  were  assigned  to  a  servile  class.  The  system  of  castes 
arose  from  the  organization  of  the  priestly  and  military  orders 
and  the  enslavement  of  the  native  races.  The  victor  in  a 
fierce  conflict  often  considered  himself  humane  to  accord  life 
to  his  enemy  on  terms  of  perpetual  service.  The  institution 
of  slavery  was  never  originated  by  a  deliberative  body  of 
law-makers,  nor  by  any  great  autocrat  acting  merely  as  a  law- 
giver. Where  the  institution  has  existed,  law-makers  have 
undertaken  to  apply  some  moral  rules  to  its  incidents,  leav- 
ing its  fundamental  vice  undisturbed.  We  shall  find  as  we 
proceed  that  the  habit  of  accepting  immoral  systems  and  then 
attempting  to  apply  moral  principles  to  their  incidents  is  uni- 
versal. The  enslavement  of  the  recently  overpowered  and 
disarmed  enemy  appears  in  very  different  light  from  that  of 
the  child  born  in  slavery.  In  the  latter  case  the  law  of  in- 
heritance of  condition  is  required  to  pass  mastery  from  the 
captor  to  his  son  and  the  status  of  a  slave  from  the  captive 
to  his  child. 

Under  the  feudal  system  conquest  of  land  carried  with  it 
rulership  over  the  occupants  of  it,  and  a  theory  of  ownership 
of  the  face  of  the  earth  was  made  to  give  in  efifect  ownership 
of  the  people  inhabiting  it.  This  mastery  was  mitigated  in 
time  by  rules  governing  the  relations  of  lords  and  tenants, 
and  out  of  these  rules  came  the  early  English  laws  of  real 
property.  It  cannot  be  truthfully  said  that  the  idea  of  abso- 
lute ownership  of  the  face  of  the  earth  is  an  outgrowth  of 
war.  It  seems  rather  to  have  arisen  from  continued  occu- 
pancy by  successive  generations  of  families  and  tribes.  The 
influence  of  habit,  education  and  environment,  in  moulding 
opinions  on  all  questions  of  political  science,  is  quite  as 
marked  as  in  religion,  fashion  and  influstrial  habits.  Noth- 
ing is  more  natural  or  more  common  than  to  base  reasoning 
on  the  fundamental  principles  of  existing  institutions,  and  t(> 
assume  that  the  existing  system  is  in  its  main  features  a 
natural   and  necessary  one.     Thus   in   Roman   jurisprudence 


6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

t^iitria  potcstas,  slavery  and  inheritance  of  personal  status  and 
of  property  were  foundations  which  endured  a  thousand  years. 
So  also  in  India  caste  is  the  key  to  all  judicial  research,  and  in 
China  paternal  authority  and  filial  piety.  Following  the 
American  revolution  individual  liberty  and  restriction  of  the 
powers  of  government  were  the  leading  ideas  of  the  revolu- 
tionists concerning  social  organization.  The  founders  of  the 
United  States  were  close  students  of  the  relations  of  the  state 
to  its  citizens,  but  did  not  concern  themselves  deeply  with  the 
laws  governing  the  relations  of  man  to  man,  or  attempt  radi- 
cal changes  in  the  laws  relating  to  property.  Even  so  immoral 
a  business  as  the  trade  in  African  slaves  was  not  prohibited  at 
once,  and  slavery  was  recognized  as  lawful  though  immoral. 
Freedom  from  the  unnecessary  restraints  of  government  was 
their  great  desideratum.  The  word  liberty  is  given  a  great 
variety  of  meanings.  As  expressive  of  the  freedom  of  action 
which  is  permissible  to  a  person  it  must  necessarily  mean  such 
freedom  as  is  compatible  with  equal  freedom  for  all  others. 
Where  many  persons  live  in  close  proximity  to  each  other, 
complete  freedom  of  action  in  each  with  full  protection 
against  the  acts  of  others  is  impossible.  The  moral  law  im- 
poses its  restraints,  and  not  only  denies  all  liberty  to  wrong 
or  injure  others,  but  enjoins  positive  duties  toward  them  in 
endless  variety  resulting  from  the  interdependence  of  man 
and  his  fellows.  No  system  of  laws  has  e^'er  yet  been  worked 
out  on  even  a  professed  adherence  to  fundamental  moral 
principles. 

Most  of  the  confusion  of  thought  and  defective  reasoning 
of  those  who  speak  and  write  on  the  subject  of  political  science 
arise  from  a  failure  to  observe  the  difference  between  ques- 
tions of  morality  and  questions  of  expediency  and  the  limi- 
tations on  expediency  imposed  by  morality.  While  it  is 
impossible  to  draw  sharp  lines  of  separation,  it  is  not  difficult 
to  perceive  that  each  has  its  legitimate  field,  and  that  the 
science  of  law,  when  law-making  becomes  a  science,  must  rest 
on  the  application  of  moral  principles  to  the  determination  of 
the  rights  of  men  and  their  conduct  in  life  and  an  intelligent 
understanding  of  the  principles  which  affect  the  selection  of 


INTRODUCTION  7 

expedients  for  the  accomplishment  of  moral  ends.  Real 
progress  and  improvement  in  social  conditions  follow  the 
promulgation  of  the  moral  law  in  such  form  that  it  is  learned, 
understood  and  accepted  as  authentic  by  the  multitude.  Most 
great  teachers  of  it  have  given  their  rules  a  religious  sanction. 
It  is  entirely  logical  to  do  so,  for  the  moral  laws  which  should 
govern  the  relations  of  men  must  emanate  from  the  overruling 
power  that  gives  life,  Moses,  Confucius,  Gautama,  Christ 
and  Mohammed,  have  each  left  a  deeper  and  more  enduring 
impression  on  the  world  than  all  the  conquerors  who  have 
terrorized  the  earth  combined.  The  fact  that  error  is  com- 
bined with  truth  in  some  of  their  teachings  does  not  disprove 
the  divinity  of  the  moral  law.  It  may  prove  the  existence  of 
the  human  element  in  the  teacher  and  his  liability  to  err.  The 
work  of  these  great  teachers  has  been  truly  constructive,  while 
that  of  the  great  warriors  has  been  the  organization  of  forces 
and  the  use  of  them  for  purposes  of  destruction  and  mastery. 
Simple  moral  truths  of  universal  application  lie  at  the  base 
of  every  great  system  of  religion.  The  beliefs  and  ceremonials 
are  the  shell  and  husks,  ostensibly  designed  to  protect  and 
nourish  the  kernels  of  truth,  yet  in  fact  concealing  them.  It 
is  easily  perceived  that  moral  principles  are  eternal  truths, 
established  by  and  according  with  the  power  that  rules  the 
universe.  They  are  the  same  everywhere  and  under  all  cir- 
cumstances. The  imaginings  as  to  the  unknowable,  the 
priestly  establishments,  the  creeds  and  religious  ceremonials, 
human  inventions,  are  changed  and  moulded  to  suit  changing 
tastes  and  inclinations. 

Departure  from  the  moral  law  in  human  conduct  is  due 
either  to  unreasoning  impulse  or  views  of  expediency,  or  both 
combined.  The  rules  of  morality  and  expediency  nmst  of 
necessity  be  identical  as  to  acts  or  conduct  atifccting  the  actor 
alone,  for  it  is  right  to  do  what  best  promotes  his  pcruiancnt 
welfare,  and  it  is  also  exjjedient.  The  departure  from  the 
true  course  in  such  matters  is  usually  due  to  a  desire  for  some 
excessive  temporary  ])lcasure,  to  ])e  compensated  later  by  cor- 
responding i)ain  or  depression,  or  the  gratihcalion  of  some 
])articular    desire    at    the   expense    of   others    more    laudable. 


8       EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

There  is  full  liberty  of  choice  of  food,  clothing-,  ornament, 
labor,  recreations,  fields  of  inquiry,  aims  in  life,  ideals,  and 
of  every  activity  so  far  as  each  of  them  is  equally  consistent 
with  human  welfare. 

In  conduct  affecting  others  expediency  is  the  justification 
which  the  wrongdoer  makes  to  himself  for  the  greatest  de- 
parture from  moral  rectitude.  Murder,  robbery,  theft,  forg- 
ery and  every  other  crime  and  intentional  wrong  to  others, 
have  their  root  in  a  belief  or  impression  of  the  expediency  of 
the  act.  Expediency  is  the  justification  claimed  for  all  crafty 
schemes  through  which  men  gain  riches  and  power  to  the 
detriment  of  others.  Expediency  is  the  excuse  for  falsehood 
and  cowardly  neglect  of  duty.  The  inability  of  a  man  to 
protect  himself  and  those  dependent  on  him  by  strictly  moral 
means  makes  room  for  resort  to  immoral  acts,  deemed  neces- 
sary. It  is  immoral  to  kill  or  maim  another,  yet  deemed 
justifiable  in  self-defense  or  to  protect  one's  family.  Though 
expediency  prompts  to  all  kinds  of  immoral  conduct,  it  has  its 
legitimate  field  of  vast  extent.  There  are  many  different  ways 
of  accomplishing  a  desirable  end  by  moral  methods.  The 
choice  and  use  of  expedients  are  the  most  common  employ- 
ments of  the  mind.  The  moral  law  fixes  limitations. 
Expediency  may  freely  lead  in  every  path  that  touches  no  for- 
bidden ground.  The  diversity  of  human  accomplishments  is 
due  to  choice  of  expedients  and  ends  to  be  accomplished. 
Choice  and  use  of  moral  expedients  for  moral  ends  are  the  true 
field  of  liberty.  Choice  of  food,  clothing,  habitation,  furnish- 
ings, labor,  repose,  recreation,  amusement,  associates,  literature 
and  moral  purposes  to  be  accomplished,  affords  an  illimit- 
able field  for  selection  of  activities.  One  may  freely  follow  the 
dictates  of  his  own  tastes  and  inclinations  wherever  full  lib- 
erty of  action  is  permissible. 

Parental  Authority 

Whatever  the  social  state,  from  the  lowest  savages  to  the 
most  cultured  nations,  parental  authority  over  young  children 
is  recognized  exerywhere.  The  parental  relation  is  established 
by  the  divine  law  of  reproduction.    Among  the  most  degraded 


INTRODUCTION  9 

savages  the  relation  of  the  mother  to  her  child  is  obvious, 
while  that  of  the  father  is  often  obscure  or  wholly  unknown. 
All  the  burdens  connected  with  rearing  the  young  are  borne 
by  the  mothers,  who  are  often  enslaved  and  oppressed  by  the 
males  with  whom  they  come  in  contact.  The  first  well  defined 
step  in  the  advancement  of  civilization  is  the  establishment  of 
family  relations  with  fathers  recognizing  definite  relations  to 
their  wives  and  children.  As  society  improves,  the  purity  and 
strength  of  domestic  ties  increase.  The  happiness  of  each 
person  and  the  welfare  of  the  state  are  dependent  everywhere 
on  the  measure  of  love,  unselfishness  and  devotion  to  duty 
prevailing  in  the  homes.  To  rear  and  protect  their  offspring, 
parents  must  direct,  restrain  and  instruct  them.  The  ruler- 
ship  is  arbitrary  in  the  sense  that  the  parent  acts  according 
to  circumstances  on  his  own  judgment  and  without  restraint 
from  fixed  rules.  The  protection  of  the  child  from  mistreat- 
ment lies  in  the  love  of  the  parent,  who  finds  joy  in  the 
comfort  and  happiness  of  the  child  and  pain  in  its  suffering. 
While  anger  and  hatred  are  sometimes  exhibited  by  par- 
ents, pity  and  love  almost  invariably  temper  the  blows  and 
quickly  restore  the  bond  of  sympathy.  No  other  shield  against 
harm  could  possibly  be  found  of  anything  like  the  strength 
and  efficiency  of  parental  love.  While  parents  have  full 
power  to  direct  and  restrain,  they  must  of  necessity  accord  to 
their  children  an  ever  increasing  measure  of  liberty  of  action 
commensurate  with  their  expanding  strength  and  mental 
powers.  Lessons  in  self-reliance  are  necessary  and  may  be 
taught  to  the  very  young  with  advantage.  It  is  often  better 
to  let  the  little  child  suft'er  the  punishment  nature  imposes  for 
its  act  than  to  restrain  it.  The  pain  caused  by  heat  and  cold 
can  only  be  clearly  understood  by  experiencing  it.  Pain  is  a 
sentinel  that  warns  of  immediate  danger,  and  through  some 
pain  the  child  must  learn  what  to  shun.  What  dangers  and 
sufferings  the  child  should  be  subjected  to  must  depend  in 
great  measure  on  the  care  and  instruction  the  parents  can  give 
it.  The  child  has  its  rights  and  is  entitled  to  its  due  measure 
of  liberty.  Of  the  limitations  of  these  the  j)arents  of  necessity 
must  judge  from  time  to  time,  till  the  capacity  of  the  child  to 


10  EVOLUTION  OF  GOA^ERNMENTS  AND  LAWS 

govern  himself  is  approximately  equal  to  that  of  the  parent 
to  govern  him.  Nature  fails  to  indicate  a  dclinite  size  or  age 
at  which  this  capacity  first  comes  into  existence.  In  Rome 
the  power  of  the  father  over  his  son  continued  throughout  life 
and  over  his  daughter  so  long  as  she  remained  under  his  hand, 
that  is  till  she  married  and  was  transferred  to  the  family  of 
her  husband.  The  patriarchal  system  was  a  very  natural  de- 
velopment in  those  parts  of  Asia  which  were  inhabited  by  a 
settled  population,  living  under  peaceful  comiitions  and  sui> 
jjorting  themselves  from  agriculture  or  pastoral  pursuits.  The 
father  of  the  family  was  the  natural  head  of  it,  and  the  family 
included  grandchildren,  as  well  as  children,  and  all  other 
members  of  the  household.  Polygamy  in  places  greatly  ex- 
tended the  membership  of  the  family  and  made  the  head  of  it 
a  ruler  over  a  community.  To  people  reared  under  such  con- 
ditions a  paternal  government  would  appear  to  be  the  only 
natural  one.  Among  savage  tribes  like  the  American  Indians 
and  the  lower  Africans  frequent  wars  disrupted  families. 
The  leadership  of  war  parties  was  taken  by  the  strong  and 
vigorous  young  men,  and  their  feats  in  arms  gave  them  in- 
fluence in  the  councils  of  the  tribe.  The  elders  were  listened 
to  in  council,  but  lacked  the  requisite  strength  and  endurance 
for  commanding  war  parties.  The  organization  of  such  war- 
like tribes  was  democratic,  and  combinations  of  the  Indian 
Iribes  mostly  took  the  form  of  confederacies. 

In  the  Asiatic  monarchies  the  king  assumed  authority  over 
all  the  people  similar  to  that  exercised  by  the  father  over  his 
family.  This  power  was  arbitrary  and  without  limitation. 
The  theory  of  such  a  government  is  false,  because  the  love, 
which  is  such  an  active  and  constant  monitor  in  the  home  and 
furnishes  such  a  safeguard  against  oppression,  is  wanting  in 
the  kingdom.  The  love  of  even  the  best  of  kings  for  their 
subjects  is  largely  theoretical,  and  in  the  nature  of  things 
cannot  be  the  same  in  quality  as  that  of  the  father  for  his 
own  family.  The  restraining  -force  being  absent,  tyranny  of 
course  results.  In  a  populous  state  warm  sympathy  for  and 
full  appreciation  of  the  peculiarities  of  each  citizen  by  the 
sovereign  is  impossible. 


INTRODUCTION  ii 

Public  Regulation  of  Private  Morals 
Ought  the  state  to  concern  itself  with  private  morals?  That 
the  state,  which  is  but  the  aggregate  of  all  the  people  in  it, 
is  deeply  interested  in  the  morals  of  every  private  person  in 
it  is  clear,  but  that  the  public  can  interfere  with  the  conduct 
of  a  person  which  concerns  him  alone  with  advantage  either 
to  him  or  to  the  state  is  not  so  evident.  The  Greeks  deemed 
the  culture  of  physical  strength  and  beauty  of  form  a  matter 
of  public  concern  as  well  as  mental  and  moral  training.  The 
code  of  Manu  deals  minutely  with  many  habits  of  body  and 
mind  and  private  acts  affecting  the  soul,  and  prescribes  pen- 
ances and  expiations  for  infractions  of  its  rules.  It  seeks  to 
direct  the  soul  in  its  struggle  to  gain  mastery  oyer  the  body 
and  all  evil  propensities  of  body  and  mind.  Religion  and 
education  are  the  forces  employed  to  guard  against  all  secret 
violations  of  its  commands.  From  early  youth  the  people 
are  taught  that  the  law  is  self-enforcing  and  that  every  in- 
fraction of  it  is  followed  by  certain  and  adequate  punishment. 
In  China  mourning  for  the  dead  is  deemed  a  matter  of  prime 
importance,  and  is  enforced  in  the  prescribed  form  under 
severe  penalties.  While  the  Book  of  Rites  deals  mainly  with 
forms  of  intercourse  between  different  persons,  it  also  en- 
joins many  observances  affecting  the  individual  alone.  Mo- 
hammed strictly  commanded  ablutions,  the  morning  and 
evening  prayer,  and  other  personal  observances  tending  to 
cleanliness  and  health  as  well  as  requiring  the  observance  of 
religious  forms.  The  Church  of  Rome  also  takes  cognizance 
of  private  morals  and  requires  confession  of  secret  sins  and 
imposes  penances  for  the  expiation  of  theuL  Other  Christian 
churches  also  deal  with  secret  acts  affecting  the  actor  alone. 
The  prevailing  doctrine  in  America  and  the  more  advanced 
states  of  Europe  is  that  the  citizen  is  accountable  to  himself 
and  the  Supreme  Being  only  for  his  private  morals  and  care 
of  his  personal  welfare.  This  doctrine  is  adopted  both  on  the 
ground  of  rightful  liberty  and  of  the  inexpediency  of  state 
regulation  of  purely  ])ersonal  concerns.  It  must  not  be  in- 
ferred however  that  this  non-interference  by  the  government 


12  EVOLUTION  OF  GOVERXMEXTS  AND  LAWS 

indicates  indifference  on  the  subject,  or  an  entire  lack  of 
public  influence  in  the  direction  of  the  best  private  morality. 
Through  the  public  schools  educational  influences,  potent  and 
far-reaching,  are  brought  to  l)ear.  ]jy  encouragement  to 
acquire  knowledge,  to  love  truth  and  form  and  follow  high 
ideals,  the  state  leads  rather  than  drives  to  purity  of  private 
morals. 

Public  Regulation  of  the  Family 

Should  the  state  undertake  to  regulate  and  improve  the  re- 
lation of  members  of  the  family  to  each  other?  That  these 
are  of  the  highest  interest  to  the  public  does  not  admit  of 
doubt.  The  citizens  constituting  the  state  are  reared  in  the 
homes  and  started  in  life  with  such  opinions,  habits  and  pur- 
poses as  home  influences  have  produced.  Vicious  and  im- 
moral parents  usually  rear  children  with  similar  character. 
On  the  other  hand  lofty  purposes  and  upright  conduct  are 
best  promoted  Dy  the  lesSons  of  the  domestic  fireside.  From 
the  home  atmosphere  of  love,  devotion  to  the  welfare  of  each 
other  and  kindness  toward  all  mankind  radiate  those  warm 
and  vitalizing  influences  that  stimulate  the  growth  of  all  that 
is  good  on  earth.  Viewing  the  importance  of  preventing  the 
propagation  of  evil  and  of  encouraging  the  growth  of  virtue, 
may  the  state  safely  leave  the  homes  to  be  ruled  as  the  mem- 
bers of  the  household  deem  best?  This  presents  the  practical 
question,  where  can  better  influences  be  found  than  those 
which  spring  spontaneously  from  matrimonial  unions.  The 
state  concerns  itself  with  the  foundation  of  the  household  by 
marriage.  Only  in  the  lowest  and  most  degraded  tribes  is 
promiscuous  sexual  intercourse  tolerated.  Though  polygamy 
is  lawful  among  more  than  two-thirds  of  the  people  of  the 
earth,  there  can  be  no  doubt  of  the  superior  morality  of  the 
union  of  the  single  pair.  This  is  indicated  by  the  near  ap- 
proximation in  the  numbers  of  each  sex  born  into  the  world 
and  is  recognized  even  in  the  countries  where  polygamy  is 
allowed,  for  in  them  monogamy  is  the  rule  and  polygamy  the 
exception.  A  few  tribes  allow  plurality  of  husbands,  but  this 
system  is  regarded  with  almost  universal  disfavor. 


INTRODUCTION  13 

There  is  great  diversity  in  marriage  ceremonies,  but  these 
are  of  relatively  small  concern.  It  is  far  more  important  to 
determine  who  may  intermarry.  Restrictions  preventing  the 
lower  classes  from  intermarrying  with  the  higher  are  most 
marked  in  India,  and  are  common  with  the  princely  houses  of 
Europe.  These  are  designed  to  prevent  the  upper  from  being 
contaminated  with  the  lower  orders. 

The  family  being  established  by  lawful  marriage  its  govern- 
ment is  usually  left  almost  entirely  to  its  own  members.  The 
theory  of  domestic  rulership  varies  from  the  patria  potestas 
of  the  Romans,  with  power  of  life  and  death  over  all  mem- 
bers of  the  household,  including  adult  children  and  their 
wives  and  their  offspring,  to  that  of  equal  rights  of  father 
and  mother  over  minor  children  and  complete  emancipation  of 
the  children  at  the  legal  age  of  majority.  The  right  to  punish 
children  is  universally  conceded  to  parents,  subject  in  ad- 
vanced states  to  the  limitation  that  the  punishment  must  not 
be  cruel  or  excessive.  When  it  is  considered  that  the  citizens 
constituting  the  state  are  born  and  reared  in  these  households, 
the  vast  importance  of  domestic  morals  is  apparent.  If  the 
state  can  improve  them  by  regulation  it  is  desirable  to  do  so, 
but  before  the  attempt  is  made  it  must  be  found  that  the 
moral  purposes  of  the  state,  as  an  organized  acting  force,  are 
better  than  those  generally  dominating  in  the  homes.  It 
seems  clear  that  this  cannot  be  safely  asserted,  even  in  the 
best  governed  states,  but  that  the  reverse  is  generally  true, 
and  that  the  impulses  which  advance  public  standards  origi- 
nate in  the  homes.  This  of  course  is  most  apparent  in  dem- 
ocracies and  republics,  but  domestic  morals  exert  a  profound 
influence,  even  under  the  most  despotic  governments.  In  this 
connection  it  must  be  noticed  that  there  is  as  wide  a  difference 
in  the  character  of  hcjuseholds  as  of  persons.  Virtue  and  all 
noble  impulses  germinate  in  the  homes,  but  so  also  does  much 
vice.  Moral  as  well  as  ]:>hysical  qualities  usually,  though  not 
universally  pass  by  inheritance  from  parent  to  child.  The 
ancient  Spartans  encouraged  ])ropagation  by  the  strongest 
and  most  perfect  physical  specimens,  and  exposed  the  defec- 
tive infants.     They  however  grossly  underrated  the  factor  of 


14  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

love  and  devotion  of  husband  and  wife  to  each  other,  so  ab- 
sohitely  essential  to  the  highest  development  of  the  moral 
character  of  the  offspring.  Where  husband  and  wife  are 
normally  healthy  physically  and  morally  there  is  little  or  no 
need  of  state  interference  with  their  domestic  affairs,  but 
may  not  society  interfere  and  protect  itself  from  the  conse- 
quences of  those  unions  that  are  productive  of  vicious  and 
defective  children?  Ought  the  criminal,  the  insane  and  the 
imbecile  to  be  allowed  to  marry  and  multiply  their  kind?  No 
intelligent  stock-raiser  allows  the  propagation  of  defectives 
among  his  flocks  and  herds.  He  takes  the  utmost  care  to 
eliminate  them,  and  understands  quite  well  how  to  improve 
the  breeds  of  horses,  cattle,  hogs  and  fowls.  The  wise  farmer 
carefully  selects  the  seed  for  his  fields,  excluding  every  de- 
fective kernel  as  far  as  practicable.  Neither  among  domestic 
animals  nor  field  crops  does  he  hope  for  good  results  from 
bad  seed.  Why  may  not  society  exercise  the  same  care  and 
intelligence  with  reference  to  the  propagation  of  the  human 
race  that  it  does  over  the  lower  animals?  To  answer  this 
question  we  have  first  to  determine  whether  it  is  morally  right 
to  protect  future  generations  from  criminals  and  defectives 
by  preventing  their  propagation;  second,  whether  it  is  ex- 
pedient to  do  so,  and  third,  what  system  can  be  adopted  and 
what  are  the  limitations  of  the  rightful  exercise  of  the  power. 
In  a  household  which  starts  from  a  well  mated,  healthy 
and  congenial  pair,  perfect  liberty  to  Hve  lives  of  devotion 
to  each  other  and  to  their  children  is  recognized  as  of  the 
highest  value.  So  sensitive  and  delicate  are  the  adjustments 
of  the  affections  that  no  one  without  the  circle  can  fully  ap- 
preciate or  understand  them.  All  such  pairs  realize  their 
responsibility  for  their  own  welfare  and  shrink  from  all  out- 
side interference.  The  state  generally  recognizes  its  inability 
to  add  to  domestic  happiness,  and  interferes  only  in  those 
cases  where  one  or  both  parents  have  been  grossly  derelict  in 
duty  or  children  are  incorrigible.  The  moral  right  to  do- 
mestic privacy  and  freedom  is  generally  conceded,  and  the 
inexpediency  of  state  interference  with  domestic  relations 
under  normal  conditions  is  recognized. 


INTRODUCTION  15 

In  the  treatment  of  children  parents  act  according  to  their 
own  dispositions  and  capacities  and  those  of  their  children. 
The  uplifting-  force  is  love  and  devotion  to  their  welfare.  The 
happiest  homes  are  doubtless  those  where  the  parents  are  able 
to  lead  their  children  in  the  right  paths  by  reason;  where  all 
good  impulses  are  sympathetically  encouraged  and  the  ca- 
pacity for  self-restraint  developed  as  early  in  life  and  as 
rapidly  as  possible.  Where  force  is  resorted  to  it  should  al- 
ways be  as  a  temporary  expedient  to  overcome  resistance  of 
authority.  Its  educational  value  can  be  no  more  than  to  incul- 
cate the  lesson  that  resistance  is  futile,  and  it  is  therefore 
necessary  to  make  its  use  accomplish  the  desired  result.  It 
may  well  be  doubted  whether  beating,  scolding  or  restraint  of 
liberty,  inflicted  merely  as  punishment  for  disregard  of  duty, 
ever  accomplishes  a  beneficial  result.  The  problem  is  to 
arouse  the  impulses  that  lead  to  right  conduct.  Blows  excite 
a  spirit  of  resentment  and  angry  words  responding  anger. 
The  spirit  manifested  by  the  parent  arouses  its  counterpart 
in  the  child.  Fear  of  punishment  tends  to  cowardice,  resort 
to  falsehood  and  deception  to  avoid  the  punishment,  rather 
than  to  stimulate  a  wish  to  do  the  things  the  parent  will  ap- 
prove. The  legitimate  object  of  correction  is  improvement  in 
the  child,  and  this  can  only  come  by  stimulating  good  im- 
pulses, convincing  its  reason,  or  awakening  its  perceptions 
of  the  moral  quality  of  the  act  or  duty  involved,  or  leading 
it  to  see  advantage  or  superior  enjoyment  in  good  conduct. 
It  is  often  assumed  that  very  young  children  can  be  ruled  only 
by  force.  Adults  are  led  by  suggestion.  The  force  of  sug- 
gestion is  most  potent  to  the  infant.  The  incapacity  of  the 
parents  to  lead  by  suggestion  induces  resort  to  force  to  drive 
the  child  in  the  desired  direction  or  punishment  after  the  act 
for  misconduct.  The  primary  need  is  that  the  parent  be  in- 
structed in  the  art  of  governing  children. 

On  no  subject  is  the  law  more  divergent  than  that  of  di- 
vorce. Even  among  the  states  of  the  American  Union  there 
is  nothing  like  uniformity  of  rule  on  the  subject.  Theories 
vary  all  the  way  from  allowing  divorce  at  the  pleasure  of 
either  party  to  denying  it  altogether,  and  the  practices  pre- 


l6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

vailing  go  nearly  to  these  extremes.  A  decree  of  court  is 
required  in  all  the  states,  but  in  many  of  them  it  may  be  ob- 
tained for  slight  cause  and  under  few  restrictions.  The  He- 
brew law  allowed  the  husband  to  divorce  his  wife  at  will, 
and  Mohammed  announced  the  same  rule  in  substance.  The 
objections  to  divorce  do  not  appear  so  serious  where  there 
are  no  children  of  the  union,  but  a  child  has  claims  on  each 
parent  for  love,  care  and  protection,  and  a  right  to  a  home 
with  both  father  and  mother  in  it,  bound  together  by  love. 
Parents  of  little  children  cannot  divide  the  home  without  vio- 
lating the  moral  law.  But  when  husband  and  wife  find  them- 
selves utterly  unable  to  live  together  in  harmony,  what  is  to 
be  done  and  what  rule  of  public  law  can  make  adequate 
provision  for  the  case?  No  decree  of  court  or  administrative 
process  has  ever  been  discovered  that  can  compel  kindness  and 
affection.  The  moral  rules  applicable  to  the  conduct  of  the 
parties  are  not  difficult  to  perceive,  but  unless  they  voluntarily 
follow  them,  no  external  force  can  compel  them  to  do  so. 
By  allowing  a  divorce  the  law  sanctions  the  disruption  of  the 
family,  by  denying  it  an  innocent  party  may  be  doomed  to 
endure  unbearable  treatment.  The  obligation  of  the  state  to 
provide  as  far  as  practicable  against  unsuitable  marriages  and 
to  make  conditions  as  favorable  to  domestic  happiness  as 
possible  may  call  for  attention  to  many  matters  now  neglected. 
The  possibilities  of  improvements  along  these  lines  present  a 
field  too  wide  to  be  covered  in  this  brief  review. 

Crimes  and  Punishments 

The  primary  domestic  function  of  a  government,  recog- 
nized in  all  ages  in  all  countries  is  the  preservation  of  order 
and  protection  of  the  citizens  from  violence  and  wrong  other 
than  such  as  the  governing  power  and  the  sentiment  of  the 
people  tolerate.  In  the  most  primitive  states  violence  to  the 
person  is  the  prevailing  form  of  crime,  and  retributive  justice 
usually  takes  the  form  of  vengeance  inflicted  by  the  injured 
party  or  his  friends.  For  homicide  the  kinsman  of  the  mur- 
dered man  may  kill  the  murderer.  In  some  states  provision 
has  been  made  for  the  payment  of  blood  money  to  appease 


INTRODUCTION  17 

the  avenger,  and  for  places  of  refuge  into  which  the  avenger 
may  not  follow.  In  the  code  of  Hammurabi  of  Babylon,  the 
Jewish  and  other  ancient  codes  the  lex  talionis,  wrong  for 
wrong,  was  the  rule  of  punishment;  for  any  injury  a  corre- 
sponding injury  to  the  wrong-doer.  There  is  something  in 
this  simple  rule  that  seems  to  appeal  to  the  sense  of  justice 
of  the  child  and  of  a  great  part  of  the  grown  people  as  well. 
To  return  blow  for  blow,  when  attacked,  and  to  kill  an  as- 
sailant, when  necessary  to  preserve  one's  own  life  is  regarded 
as  justifiable  in  the  most  enlightened  states.  Self-preserva- 
tion appears  to  be  a  natural  right.  Organized  society  goes 
farther  than  this  and  after  the  danger  is  past,  the  culprit 
overpowered  and  held  securely,  as  a  return  and  punishment 
for  the  wrong  done,  inflicts  a  corresponding  wrong  on  him. 
In  considering  the  general  aspect  of  the  administration  of  the 
criminal  law  in  Christian  states  the  first  question  to  be  con- 
sidered is,  is  it  morally  right  in  principle,  second,  is  it  the 
most  expedient  to  promote  the  general  welfare.  Writers  on 
political  science  are  unable  to  agree  on  the  theory  of  punish- 
ments. The  primitive  idea  is  to  compensate  crime  with  suf- 
fering, and  deter  the  commission  of  like  offenses  by  fear 
of  like  punishment.  This  view  is  still  widely  entertained. 
Another  is  that  the  state  takes  such  measures  as  appear  neces- 
sary to  protect  society  from  a  repetition  of  the  offense,  ab- 
staining from  merely  vindictive  punishments.  A  third  is  that 
society  owes  a  duty  to  the  culprit,  and  should  aid  him  in 
every  way  to  overcome  his  unsocial  propensities ;  that  the 
state  has  no  moral  right  to  inflict  injury  or  pain  on  any 
human  being  for  the  mere  purpose  of  punishment  for  any 
act  or  conduct ;  that  good  will  toward  the  culprit  must  prevail 
in  his  treatment,  and  his  welfare  and  reformation  be  prime 
considerations.  That  the  state  has  the  moral  right  to  do 
whatever  is  necessary  to  protect  the  people  when  the  criminal 
openly  violates  the  rights  of  others  and  forcibly  resists  the 
rightful  exercise  of  private  rights  or  public  authority,  and 
that  he  must  be  left  in  danger  of  injury  while  the  struggle 
continues  and  cannot  claim  protection  from  the  public  against 
the  immediate  consequences  of  his  own  acts,  appear  evident. 


i8  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

But  when  the  power  of  resistance  of  the  criminal  is  overcome, 
what  measure  of  chity  does  the  state  owe  him?  It  cannot 
then  do  him  harm  on  the  plea  of  immediate  necessity.  Can 
there  be  a  defenseless  human  being  wholly  without  the  pale 
of  governmental  care?  May  the  state  assume  a  permanently 
hostile  attitude  toward  criminals  as  men,  or  is  it  morally 
bound  to  have  the  same  concern  for  those  who,  because  of 
innate  defects  or  unfavorable  environment,  have  committed 
crime,  that  it  has  for  normal  humanity?  It  is  apparent  that 
the  infliction  of  the  death  penalty  is  not  on  the  theory  of 
conferring  a  benefit  on  the  criminal.  Confinement  in  jails  and 
penitentiaries  under  needlessly  rigorous  conditions  rarely  has 
any  tendency  to  reform,  but  on  the  contrary  stimulates  the 
study  of  crime,  induces  hateful  and  revengeful  feelings,  and 
at  the  end  of  the  term  turns  out  a  more  expert  and  hardened 
criminal.  The  view  generally  entertained  is  that  the  system 
followed  tends  to  protect  society  from  further  wrongs  by  the 
criminal  and  also  to  deter  others  from  like  offenses  by  the  fear 
of  like  punishment.  So  far  as  the  criminal's  own  conduct 
is  concerned  experience  abundantly  proves  that  the  protection 
of  society  ends  with  his  confinement.  Unless  he  goes  out  with 
better  social  purposes  than  he  had  when  he  w^ent  in,  the  public 
purpose  has  not  been  accomplished.  It  is  at  least  doubtful 
whether  cruelty  has  any  tendency  to  convince  him  of  the  im- 
morality of  the  act  for  which  he  is  punished.  He  will,  how- 
ever, readily  perceive  the  immorality  of  the  excessive  cruelty 
to  himself,  and  hate  those  who  inflict  it  on  him.  The  state 
being  responsible  for  his  confinement;  he  quite  naturally  at- 
tributes all  his  suffering  to  the  public  and  feels  that  society 
in  general  is  his  enemy.  To  put  him  out  into  society  with 
such  feelings  is  almost  equivalent  to  an  invitation  to  recom- 
pense himself  as  best  he  can  at  the  expense  of  society  for  the 
wrongs  done  him.  So  far  as  the  tendency  to  deter  others 
from  like  offenses  is  concerned,  severity  of  treatment  in  con- 
finement can  have  no  effect  unless  known  to  the  persons  whose 
conduct  it  is  desired  to  influence.  This  could  only  become 
generally  effective  by  making  the  barbarities  practiced  gen- 
erally' known,  which  of  course  the  state  and  the  prison  offi- 
cials would  be  unwilling  to  do. 


INTRODUCTION  ig 

The  researches  of  modern  criminologists  disclose  the  ex- 
treme crudity  of  the  penal  codes  of  Europe  and  America, 
which  yet  appear  far  better  than  the  ancient  lex  talionis  or 
the  Asiatic  codes  of  modern  times.  Malicious  murder,  delib- 
erately committed,  always  produces  a  profound  sensation  of 
horror,  usually  accompanied  by  a  general  desire  for  speedy 
vengence  on  the  murderer.  Of  such  murders  many  are  in- 
duced by  a  desire  of  revenge  for  some  real  or  fancied  injury. 
These  are  seldom  if  ever  committed  under  normal  mental 
conditions,  for  the  normal  state  of  the  human  mind  is  one  of 
either  indifference  or  good  will  toward  others.  The  misan- 
thrope is  such  because  he  is  abnormal  from  birth  or  made  so 
by  subsequent  influences.  The  normal  healthy  person  desires 
the  welfare  of  others,  and  it  is  because  of  this  general  feeling 
that  the  community  is  shocked  when  a  murder  is  committed. 
If  all  or  a  majority  were  misanthropes,  they  would  feel 
pleasure  rather  than  pain  at  the  destruction  of  a  human  life 
and  applaud  rather  than  condemn  the  act  of  the  murderer. 
The  law  now  prohibits  the  friends  and  relatives  of  the  mur- 
dered man  from  killing  the  murderer  under  the  natural 
promptings  of  anger  and  resentment  caused  by  the  deed ;  but 
after  trial  and  conviction,  it  requires  a  public  officer,  having 
no  feeling  in  the  case  different  from  that  of  the  general  public, 
to  put  the  murderer  to  death,  deliberately,  intentionally,  and  at 
a  time  and  place  appointed  by  the  court  in  accordance  with 
the  law.  In  a  large  part  of  the  cases  the  general  summing  up 
of  the  matter  is  that  the  murderer  has  taken  a  human  life  to 
gratify  his  private  desire  for  vengeance,  and  the  public  has 
taken  his  life  to  gratify  a  general  desire  of  the  people  for 
vengeance.  Hatred  moved  the  murderer  to  commit  the  deed, 
and  hatred  of  the  crime,  carried  on  to  hatred  of  the  human 
being  who  committed  it,  induces  the  public  to  execute  the 
murderer.  Not  only  is  the  public  act  similar  to  the  private 
crime,  but  the  motive  inducing  it  is  essentially  the  same.  In 
morals  then  the  punishment  is  wrongful  as  well  as  the  crime. 

One  of  the  cardinal  doctrines  of  the  criminal  law  is  that 
the  defendant  must  be  tried  for  the  particular  offense  with 
which  he  stands  charged,  and  the  incpiiry  Ijc  strictly  limited 


20  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

to  his  guilt  or  innocence  of  that  olTense.  It  is  not  a  century 
since  people  were  executed  in  England  for  small  larcenies  and 
other  minor  offenses.  The  extreme  penalty  of  death  was  in- 
flicted for  the  single  act  without  reference  to  the  general 
character  and  conduct  of  the  culprit,  or  to  his  environment. 
It  is  apparent  that  organized  society  has  no  greater  moral 
light  to  harm  a  citizen  merely  to  gratify  the  general  desire 
for  vengeance  than  a  private  person  has. 

The  whole  system  of  harsh  punishments  rests  on  views  of 
expediency  for  its  justification.  It  is  doubtless  true  that  some 
people  are  deterred  from  crime  by  fear  of  punishment,  but 
it  is  equally  true  that  criminals  usually  rely  on  concealment 
of  their  crimes  and  escaping  the  punishment,  whatever  its 
.'^verity.  The  moral  tone  of  any  state  that  punishes  harshly 
is  necessarily  low.  Reports  of  the  hangings  of  criminals 
shock  the  finer  sensibilities  and  teach  lessons  of  hatred  and 
disregard  for  human  life.  If  the  state  is  cruel  and  merciless 
why  may  not  the  private  citizen  be  so  too?  The  criminal  in 
fact  seldom  weighs  the  punishment  against  the  crime.  He 
always  expects  to  avoid  conviction  and  escape  the  penalty, 
whatever  it  may  be.  Fines  and  forfeitures  may  deter  from 
conduct  having  no  moral  turpitude,  but  prohibited  by  law,  but 
have  little  influence  on  hardened  criminals.  The  best  justifi- 
cation that  can  be  found  for  vindicitive  punishments  is  that 
the  state  has  not  sufficient  intelligence  and  moral  force  to  find 
better  means  for  the  execution  of  its  laws.  If  laws  prescribe 
punishment  for  their  infraction  and  no  other  means  of  com- 
pelling obedience  to  them,  then  the  punishment  must  be 
administered  or  the  law  is  without  force.  The  general  senti- 
ment of  mankind  is  strongly  in  favor  of  law  enforcement,  so 
vindictive  punishments  continue. 

Can  expedients  be  found  for  the  prevention  of  crime  and 
the  protection  of  society  without  the  violation  of  the  moral 
law  by  the  state  itself?  Manifestly  this  cpiestion  must  be 
answered  in  the  affirmative,  yet  perhaps  no  person  is  capable 
of  giving  a  full  and  clear  statement  of  the  expedients  which 
would  fully  accomplish  the  object.  Parents  find  it  necessary 
to  study  the  peculiarities  of  their  children  and  to  adapt  their 


INTRODUCTION  21 

corrections  to  these  peculiarities.  This  however  is  of  minor 
importance,  for  the  secret  of  success  in  governing  the  young 
Hes  in  earnest  loving  care,  which  instructs  and  leads  the  child 
to  act  for  its  own  best  interests  and  greatest  joy,  which  gives 
liberty  to  choose  where  the  question  is  only  of  expediency  or 
taste,  which  makes  clear  the  consequences  of  wrong-doing, 
not  in  arbitrary  human  punishment,  but  as  ensuing  naturally 
and  necessarily  from  the  misconduct  itself.  It  is  by  leading 
the  child  to  a  clear  understanding  of  the  advantages  of  good 
conduct,  and  by  instilling  lofty  sentiments  of  virtue,  truth- 
fulness and  kindliness,  coupled  with  the  opportunity  to  realize 
in  practice  the  truth  of  the  instruction,  that  strong  characters 
are  formed.  Mere  abstract  teachings  may  not  be,  and  usually 
are  not,  comprehended.  The  child  must  be  led  in  the  right 
paths  and  restrained  from  going  in  the  wrong  ones.  At  no 
time  and  under  no  circumstances  is  it  permissible  for  the 
parent  to  exhibit  or  feel  hatred  toward  the  child.  Love  at- 
tracts, hatred  repels.  No  person  can  by  any  possibility  ex- 
ercise a  beneficial  influence  under  the  impulse  of  hatred. 
Neither  cruel  beatings  nor  weak  indulgence  in  wrong-doing 
is  to  be  tolerated.  The  parent  must  maintain  a  close  bond 
of  interest  in  the  doings  of  the  child,  encouraging  all  good 
deeds,  and  pointing  out  the  evil  and  showing  why  and  where- 
in it  is  wrong.  Children  instinctively  rely  on  parental  in- 
struction, if  parents  are  truthful  and  sincere,  and  delight  in 
their  sympathy  and  approbation.  Knowledge  that  an  act  is 
condemned  by  parents  who  are  habitually  kind  and  sympa- 
thetic is  usually  sufficient  to  prevent  its  repetition.  To  re- 
strain misconduct  and  compel  the  performance  of  duty  the 
use  of  physical  force  is  sometimes  necessary ;  but  when  used 
it  should  always  be  made  manifest  that  it  is  justly  used  for 
good  ends.  Many  parents  lack  moral  force  and  are  unable 
to  control  their  own  passions  and  weaknesses.  The  children 
must  then  suffer  accordingly.  In  such  cases  whence  is  the 
elevating  impulse  to  emanate?  Usually  and  mainly  from  the 
love  of  the  parent  for  the  child. 

To  society  the  correction  of  its  weak  immoral  and  vicious 
members  presents  the  same  task  Init  in  a  dilTercnt  form.     The 


22      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

State  undertakes  to  protect  each  of  its  citizens  against  the 
violence  and  aggression  of  others.  Most  monarchical  gov- 
ernments have  been  based  on  the  principle  of  paternal  author- 
ity in  the  ruler  over  all  the  people.  Unfortunately  the  exercise 
of  paternal  power  by  a  ruler  over  great  numbers  of  people 
lacks  the  sympathetic  element  which  emanates  from  the  par- 
ental relation.  The  king  has  a  great  many  bad  children  whom 
he  proceeds  to  punish.  He  knows  of  their  vices  only.  These 
he  hates  and  carries  the  hatred  on  to  the  possessors  of  them. 
He  punishes  in  a  spirit  of  vengeance  and  harshly.  From  the 
bamboo  to  the  headsman's  axe  the  purpose  is  to  extirpate  crime 
and  inspire  fear  in  others  of  like  rigor  for  like  offenses.  To 
perform  the  service  of  administering  the  punishment  men  are 
chosen  who  are  not  greatly  shocked  at  exhibitions  of  cruelty, 
and  even  delight  in  it.  Though  instances  of  compassion  for 
criminals  are  not  wanting  in  Christian  countries,  and  at  times 
morbid  sympathy  is  exhibited,  the  general  spirit  is  all  too 
similar  to  that  in  despotic  governments. 

To  approach  the  consideration  of  crime  with  a  feeling  of 
genuine  desire  for  the  welfare  of  the  criminal  as  well  as  of 
society  may  be  beyond  the  stage  of  morality  generally  pre- 
vailing, yet  it  is  not  too  soon  to  perceive  and  declare  the  true 
principles  applicable  to  the  subject.  Everyone  who  has  had 
much  experience  with  criminals  knows  that  practically  all  of 
them  have  virtues  and  are  susceptible  to  friendly  attachments 
as  well  as  other  people.  They  are  usually  specialists  in  crime. 
The  homicide  may  be  truthful  and  scrupulously  honest  in  the 
payment  of  debts  and  performance  of  contracts.  His  crime  is 
generally  due  to  some  abnormal  emotion.  It  is  impossible  to 
draw  a  clear  line  of  demarkation  between  irresponsible  in- 
sanity and  responsible  passion.  The  legal  rule  that  the  de- 
fendant is  responsible  for  his  act  if  he  knew  at  the  time  of 
committing  it  that  it  was  wrongful,  even  though  he  was 
powerless  to  master  his  passion,  is  harsh  when  the  purpose  of 
the  law  is  merely  to  measure  out  a  given  quantity  of  punish- 
ment. The  forger,  the  pickpocket,  the  defaulter  or  the  per- 
jurer, may  have  as  little  inclination  to  do  bodily  harm  to 
another  as  the  most  exemplary  citizen.     The  robber  and  the 


INTRODUCTION  23 

horsethief  almost  invariably  have  generous  impulses  and  de- 
voted friends  to  whom  they  are  strongly  attached.  The  per- 
jurer may  have  no  other  prominent  vice,  and  may  have 
friends  whom  he  does  not  deceive.  Crime  may  be  committed 
in  accordance  with  a  well  defined  inclination  to  a  particular 
class  of  offenses,  or  under  stress  of  circumstances  which 
produce  a  temporary  moral  depression.  This  is  more  ap- 
parent in  homicides  than  in  other  crimes,  but  offenses  against 
property  are  often  the  result  of  temporary  external  influences 
which  the  culprit  cannot  resist.  To  weigh  the  conduct  of  a 
person  charged  with  crime  fairly,  the  judge  should  be  able 
to  see  his  act  from  his  standpoint.  This  he  is  but  rarely  able 
to  do.  Everybody  departs  more  or  less  from  the  strict  line 
of  moral  rectitude.  The  Chinese,  more  logically  than  the 
Europeans,  treat  every  failure  to  perform  a  duty  or  obliga- 
tion as  an  oft'ense  to  be  corrected,  and  grade  punishments 
according  to  the  magnitude  of  the  wrong  done  and  all  the  cir- 
cumstances connected  with  the  offense.  They  are  however 
far  less  sympathetic  in  their  treatment  of  oft'enders  than 
Americans. 

It  is  now  quite  well  understood  by  criminologists  that  a 
single  offense  may  be  committed  by  one  who  is  not  necessarily 
starting  on  a  career  of  crime,  but  may  completely  overcome  his 
criminal  inclinations ;  that  it  is  necessary  to  know  the  char- 
acter and  environments  of  a  convict  in  order  to  understand 
how  he  should  be  treated  with  a  view  to  his  reformation,  and 
that  men  are  made  better  by  sympathy  and  encouragement  in 
doing  what  is  right  and  useful,  rather  than  by  harsh  punish- 
ments. Many  crimes  are  directly  attributable  to  abnormal 
and  diseased  conditions  of  the  body  or  the  brain.  Some  of 
these  can  be  speedily  and  certainly  cured  by  surgical  and  medi- 
cal treatment.  Instead  of  burning  or  hanging  the  humane 
and  logical  punishment  of  rape  would  be  castration,  which 
would  free  the  culprit  from  all  further  impulse  to  commit 
such  a  crime.  The  same  operation  might  be  performed  with 
great  advantage  on  some  of  the  imbecile,  insane  and  crimi- 
nals of  other  sorts.  Imbeciles  who  are  a  i)ublic  charge  cer- 
tainly ought  not  to  be  allowed  to  i)ropagate,  nor  the  incurable 


24  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

insane  or  confirmed  criminal.  This  like  every  other  treatment 
of  unfortunates  should  be  done  in  a  spirit  of  kindness,  and 
for  the  purpose  of  benefiting  rather  than  injuring  them.  In 
many  states  laws  are  now  in  force  prohibiting  the  marriage  of 
members  of  these  classes,  but  such  laws  are  by  no  means  a 
full  protection  to  society.  In  many  cases  it  is  necessary  to 
take  more  effective  measures.  The  exercise  of  such  power  is 
not  necessarily  liable  to  greater  abuse  than  of  others  now 
commonly  employed.  Whatever  measures  are  taken  to  cure 
mental  and  moral  diseases  should  be  prompted  by  the  same 
motives  as  those  which  prompt  surgical  operations  or  medical 
treatment  for  normal  people.  All  these  unfortunate  classes 
are  children  of  the  state,  and  the  state  is  responsible  for  their 
welfare. 

Opposed  to  the  performance  of  its  moral  duty  by  the  state 
in  the  treatment  of  criminals  and  defectives  are  views  of  ex- 
pediency. In  apprehending  and  disarming  criminals  and  luna- 
tics it  is  often  necessary  to  employ  force  and  to  do  them  bodily 
harm,  yet  a  resolute  man  can  often  make  an  arrest  without 
any  injury,  where  another  would  have  a  serious  conflict.  It 
is  impossible  for  the  state  to  always  select  the  best  possible 
agents  to  do  this  work.  So  long  as  men  are  imperfect,  they 
will  fall  short  of  the  best  possible  achievements  in  every  line, 
and  a  state,  acting  on  the  most  humane  and  enlightened  prin- 
ciples and  theories,  will  necessarily  exhibit  imperfections  in 
practice.  It  is  of  the  utmost  importance  however  that  the 
state  free  itself  from  every  just  charge  of  acting  on  the  princi- 
ple of  hatred  toward  any  class  of  its  citizens.  Charitable  in- 
stitutions, prompted  by  sympathy  for  unfortunate  humanity, 
are  being  rapidly  multiplied.  The  elimination  of  all  the  bur- 
densome classes  by  wise  and  just  means  is  not  an  idle  dream, 
l)ut  an  accomplishment  which  may  be  approximated  in  the 
near  future. 

The  code  of  Hammurabi  of  Babylon  exhibits  the  spirit  of 
liatred  toward  criminals.  Of  all  punishments,  maiming,  so 
frequently  imposed  by  this  code,  is  the  most  impolitic,  for  it 
leaves  society  still  burdened  with  the  criminal  after  his  power 
to  be  useful  has  been  diminished  and  his  hatred  for  others 


INTRODUCTION  25 

stimulated.  To  put  out  an  eye  or  cut  off  a  hand  or  foot  is  a 
most  shocking  exercise  of  cruelty,  yet  such  punishments  were 
long  recognized  as  just  throughout  Babylonia  and  Judea. 

One  of  the  most  valuable  ideas  developed  by  Bentham  in 
his  Morals  and  Legislation  is  that  of  the  fecundit}?  of  various 
impulses.  Much  of  the  cruelty  and  misery  in  the  w^orld  has 
resulted  from  laws  like  those  of  Babylon,  which  constantly  in- 
stilled a  lesson  of  hatred  into  the  minds  of  the  people.  The 
propagation  of  sentiments  of  amity  and  sterilizing  those  of 
enmity  are  matters  of  prime  importance  for  the  consideration 
of  legislators  in  dealing  with  crime,  and  should  not  be  left  in 
the  sole  care  of  moralists  and  religious  teachers.  It  is  evident 
that  no  state  ever  has  or  ever  can  weigh  out  and  impose  on 
each  culprit  a  measure  of  punishment  nicely  balancing  his 
offense.  The  multiplicity  of  considerations  to  be  taken  into 
account  in  each  case  is  so  great  that  adequate  judicial  machin- 
ery cannot  be  constructed  for  the  work.  Restraints  seem  nec- 
essary, and  the  imposition  of  them  must  be  in  accordance  with 
law  by  public  agents,  but  the  deeper  and  stronger  purpose  is 
to  induce  good  conduct.  Wars,  the  execution  of  criminals, 
torture  and  all  vindicitive  punishments  propagate  the  spirit  of 
hatred  and  induce  criminal  conduct. 

National  Crimes 

The  strong  nations  are  subject  only  to  self-imposed  checks, 
prompted  by  sentiments  of  justice,  selfish  interest,  fear  or 
other  considerations  influencing  their  conduct.  There  is  no 
superior  force  to  restrain  or  punish  them.  That  great  nations 
commit  great  crimes  is  apparent.  The  example  of  an  aggres- 
sive war  teaches  all  the  people  of  the  nation  a  lesson  of  crime. 
While  the  nation  itself  acts  the  part  of  a  criminal  how  can  it 
hope  to  instruct  its  citizens  in  morality?  An  aggressive  war 
to  take  by  force  that  which  belongs  to  another  is  identical 
in  principle  with  the  deed  of  the  robber.  The  incidental 
slaughter  in  battle  corresponds  exactly  with  the  murders  the 
robber  commits  in  getting  his  booty.  Logically  the  state 
should  deny  to  itself  utterly  the  right  to  use  military  force 
against  another  except  in  self  defense.     The  moral  law  ap- 


26  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

plies  as  well  to  nations  as  to  persons.  It  is  only  by  full  recog- 
nition of  its  binding-  force  in  all  human  relations  that  a  state 
can  ho])e  to  deal  successfully  with  its  morally  weak  citizens. 
Judicial  settlement  of  international  disputes  in  accordance 
with  fixed  principles  is  indispensable  to  a  complete  scheme  for 
the  elimination  of  crime.  The  false  lessons  inculcated  by  a 
great  war  affect  the  moral  tone  of  the  people  for  generations. 
The  nation  should  be  the  great  teacher  and  exemplar  of  mor- 
ality. When  it  voluntarily  goes  to  war  it  becomes  a  great 
teacher  of  crime. 

Legislative  Morality 

The  functions  exercised  by  a  state  are  divided  into  legisla- 
tive, judicial  and  executive.  Briefly  stated,  the  legislature 
declares  the  law,  the  judiciary  interprets  it  and  determines 
its  application  and  the  executive  carries  it  into  effect.  It 
would  seem  that  the  business  of  a  law  making  body  wmild 
naturally  be  to  formulate  rules  of  conduct  and  of  rights  ex- 
pressive of  the  moral  law.  The  most  casual  examination  of 
the  work  of  any  such  body  will  disclose  the  fact  that  consider- 
ations of  expediency  largely  predominate,  and  that  the  pure 
moral  law  is  generally  regarded  as  too  good  for  practical  use 
in  a  world  where  men  are  constantly  seeking  personal  ad- 
vantage by  the  use  of  more  or  less  immoral  expedients.  In 
defining  crimes  the  legislature  gives  names  to  certain  classes 
of  immoral  acts.  The  list  is  brief  when  compared  with  one 
including  all  the  immoral  conduct  of  which  people  are  guilty, 
but  it  includes  those  most  vicious  and  common.  Concerning 
some  vices  there  is  a  tendency  for  public  opinion  to  ebb  and 
flow,  and  for  legislatures  to  adopt  extreme  measures  of  re- 
pression at  one  time  and  at  another  to  indulge  the  utmost 
toleration.  Thus  drunkenness,  gambling,  prostitution,  liquor 
selling,  usury  taking  and  like  offenses  are  sometimes  visited 
with  severe  penalties,  and  at  others  with  none.  Heresy,  witch- 
craft and  other  fictitious  crimes  are  at  times  visited  with 
death  by  torture  and  at  others  laughed  at  as  absurd.  Resist- 
ance of  an  oppressive  ruler  is  treason  when  unsuccessful  and 
patriotic   revolution   when    it   results   in   the   expulsion   of   a 


INTRODUCTION  27 

tyrant.  Smuggling  goods  is  an  offense  or  not  according  to 
the  prevailing  policy  of  the  government  with  reference  to 
revenue  and  foreign  trade.  It  involves  no  moral  wrong  when 
the  trade  is  in  useful  articles  and  the  parties  to  the  transaction 
are  mutually  benefited,  except  as  there  may  be  a  moral  ob- 
ligation to  pay  a  tax  on  the  goods. 

On  the  other  hand  there  are  moral  wrongs  in  great  number 
which  European  and  American  states  never  attempt  to  punish 
as  crimes.  It  is  morally  wrong  for  an  able  bodied  man  to 
live  by  begging  instead  of  useful  labor.  This  is  sometimes 
punished  though  the  beggar  gets  only  the  most  meagre  subsis- 
tence from  the  public.  It  is  a  far  greater  moral  wrong  for  a 
strong  healthy  intellectual  man  to  live  in  idleness  and  luxury 
on  the  labors  of  others,  yet  those  who  have  means  to  do  so 
are  not  only  never  punished,  but  are  usually  looked  up  to  as 
of  a  superior  class.  It  is  always  wrong  to  refuse  to  pay  a 
just  debt  when  able  to  do  so,  but  it  is  not  classed  as  a  crime. 
It  is  a  moral  wrong  to  withhold  from  another  anything  that 
of  right  belongs  to  him,  yet  in  many  cases  it  is  not  regarded 
as  a  crime.  The  Chinese  more  logically  classify  all  wrongful 
acts  and  failures  to  perform  duties  as  punishable  offenses.  It 
is  morally  wrong  to  fail  in  any  duty  to  aid  another,  yet  rarely 
punishable.  It  is  morally  wrong  to  refuse  to  do  a  useful  part 
in  life  and  exchange  service  for  service  and  kindness  for  kind- 
ness, yet  it  is  not  and  seldom  could  be  a  punishable  crime. 

From  the  instances  given  it  is  apparent  that  a  legislative 
body  in  selecting  offenses  to  be  punished  is  governed  by  views 
of  necessity  and  expediency.  It  is  utterly  impracticable  to 
have  courts  sitting  in  judgment  on  everv  trifling  deviation 
from  strict  moral  rectitude.  Such  trials  would  be  an  in- 
tolerable burden,  productive  of  great  harm  and  little  or  no 
good.  The  legislature  therefore  selects  such  crimes  as  a])- 
pear  most  dangerous  to  society  and  imposes  penalties  for 
their  commission.  In  dealing  with  these  it  is  a  matter  of 
great  difficulty  for  the  state  to  keep  within  moral  limits. 
With  the  abolition  of  whipping  posts,  pillories  and  the  rlcath 
penalty  and  (ho  adoptif)n  of  more-  humane  IrcatnuMit  of  pris- 
oners in  places  of  confinement,  there  are  evidences  (jf  a  grow- 


28  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ing  conviction  that  the  state  has  no  moral  right  to  do  evil  to 
a  criminal  to  gratify  public  hatred  of  the  crime.  The  true 
theory  of  the  relation  of  the  state  to  criminals  is  that  it  is  one 
of  guardianship  and  similar  to  that  assumed  in  the  care  of 
lunatics.  Its  duty  is  to  protect  the  public  against  their  vio- 
lence and  cunning,  and  at  the  same  time  promote  the  welfare 
of  the  culprit. 

In  dealing  with  the  rules  governing  what  are  termed  civil 
cases  the  legislature  has  a  far  wider  field  to  cover.  Crime  is 
abnormal  and  exceptional,  but  in  highly  civilized  states  the 
people  are  interdependent,  and  the  rules  governing  their  deal- 
ings and  relations  have  more  or  less  effect  on  all.  It  would 
seem  to  be  the  business  of  the  law-making  power  to  elaborate 
and  arrange  in  logical  order  all  rules  which  are  to  be  ob- 
served as  law.  It  w'ould  also  appear  to  be  its  duty  to  make 
every  rule  conform  to  the  moral  law ;  in  fact  to  make  rules 
which  are  merely  expressive  of  the  moral  law  applicable  to 
each  different  class  of  relations  and  transactions.  Neither 
of  these  things,  however,  has  ever  yet  been  accomplished. 
Nothing  can  better  illustrate  human  selfishness  and  fallibility 
than  the  deficiencies  and  imperfections  of  the  great  codes 
which  have  been  promulgated  in  different  ages  and  parts  of 
the  earth.  Cases  continually  arise  for  which  there  is  no  pro- 
vision, and  doubts  as  to  what  rule  governs  under  a  given  set 
of  circumstances  perplex  the  judges.  All  great  codes  have 
been  in  main  compilations  of  the  rules  already  observed  in  the 
courts,  and  have  naturally  embodied  whatever  unjust  and 
immoral  system  had  been  before  firmly  established.  Thus 
the  Code  of  Manu,  so  exalted  in  much  of  its  principles,  is 
based  on  classifications  of  the  people  designed  to  maintain  the 
supremacy  of  the  priestly  and  military  orders.  The  code  of 
Justinian  merely  continued  the  laws  concerning  slavery,  per- 
sonal relations  and  property  rights  with  slight  modifications, 
none  of  which  reached  their  fundamental  immoralities,  and 
the  Chinese  code  adheres  to  the  theory  of  the  inferiority  of 
women  and  cruel  punishments  for  all  serious  derelictions. 

The  absence  of  any  general  codification  of  the  law  in  Eng- 
lish speaking  countries  may  be  accounted  for  in  part  by  the 


INTRODUCTION  29 

greater  complexity  of  industrial  and  coniincrcial  ati'airs,  the 
rapid  substitution  of  new  methods  for  old,  and  the  adherence 
to  judicial  precedents  to  supplement  the  statutory  law.  The 
dit^culty  in  bringing'  a  large  representative  body  like  the  Brit- 
ish Parliament  or  an  American  legislature  to  an  agreement 
on  so  many  and  such  varied  topics  as  would  necessarily  be 
included  in  a  code  covering  the  whole  field  of  civil  law  is  too 
great  to  allow  a  complete  codification  at  one  time  and  as  a 
single  act.  Codification  by  topics  is  more  feasible,  and  some 
progress  has  been  made  in  this  way  in  several  states.  The 
rapid  multiplication  of  judicial  precedents,  the  disposition  of 
some  courts  to  draw  nice  and  even  fanciful  distinctions  in 
order  to  reach  a  desired  result,  the  breaking  down  of  whole- 
some rules  by  the  multiplication  of  exceptions  to  them,  and 
the  growing  impracticability  of  administering  substantial  jus- 
tice by  the  system  now  followed,  call  for  some  form  of  more 
concise  and  authoritative  statement  of  the  law.  The  multipli- 
cation and  diversification  of  business  enterprises  and  combi- 
nations have  complicated  the  law  of  agency,  employer  and 
employee,  corporations  and  kindred  topics.  Continuing  de- 
velopment will  doubtless  cause  many  more  rapid  changes  in 
methods.  The  law  governing  the  new  relations  thus  developed 
cannot  lead,  but  must  necessarily  follow  the  new  conditions. 
Codification  for  the  future  can  only  cover  the  field  of  past 
and  existing  needs;  it  cannot  adequately  provide  for  the 
unknown. 

The  principal  functions  ordinarily  exercised  by  all  legisla- 
tive bodies  relate  to  the  creation  of  ofBces,  defining  their 
functions,  designating  the  manner  of  filling  them,  levying 
taxes,  expending  public  money  and  regulating  the  various 
branches  and  departments  of  the  governmental  system.  In 
exercising  these  functions  they  work  in  the  true  field  of  ex- 
pediency. There  is  nothing  in  the  moral  law  indicating  the 
number  of  officers  needed  by  a  state,  the  duties  properly  at- 
tributable to  each,  the  length  of  time  each  should  serve  or  the 
mode  of  their  selection.  It  does,  however,  require  that  each 
public  servant  should  render  a  just  equivalent  in  service  for 
the  salary  he  receives,  and  impose  restrictions  on  his  invasion 


30  EVOLUTION  OF  GOA^ERNMENTS  AND  LAWS 

of  the  rights  of  the  people.  In  devising  and  constructing  the 
machinery  of  government  the  law-making  power  has  the  task 
of  providing  governmental  agencies  to  restrain  the  people 
from  doing  wrong  and  to  compel  them  to  do  right.  In  this 
it  undertakes  to  exert  a  moral  force  superior  to  that  which 
directs  the  conduct  of  such  of  its  citizens  as  it  is  designed  to 
regulate.  All  experience  proves  that  the  men  chosen  for  offi- 
cial positions,  no  matter  what  the  form  of  the  government, 
are  not  distinctly  superior  in  moral  purposes  to  the  average 
citizen.  They  are  however  superior  to  the  classes  most  need- 
ing restraint  and  supervision.  By  carefully  defining  their 
duties  and  strictly  limiting  their  powers  the  officers  are  re- 
strained from  misconduct  and  instructed  in  the  performance 
of  their  duties. 

The  law-making  power  constructs  the  judicial  system,  es- 
tablishes courts,  provides  for  the  selection  of  judges,  fixes 
their  compensation  and  tenure  of  office,  prescribes  rules  of 
procedure  and  is  responsible  for  the  principles  of  law  admin- 
istered in  them.  It  also  outlines  the  organization  of  all  the 
executive  branches  of  the  government,  fixes  the  number  and 
prescribes  the  duties  of  each  class  of  officials  and  provides 
compensation  for  their  services.  It  authorizes  the  organiza- 
tion and  equipment  of  armies  and  imposes  taxes  to  maintain 
them.  In  doing  each  of  these  things  it  is  evident  that  the 
end  to  be  accomplished  should  be  a  moral  one,  but  in  devising 
means  to  accomplish  it,  the  legislature  necessarily  chooses 
such  instruments  and  methods  as  it  deems  best  adapted  to  the 
end.  Considerations  of  expediency  are  controlling.  If  these 
were  necessarily  considerations  of  public  expediency,  the  state 
would  be  in  no  danger  except  from  errors  of  judgment,  but 
unfortunately  personal  and  party  expediency  are  quite  too 
often  controlling  considerations.  Where  autocratic  power  is 
given  to  one  man,  his  ambitions  and  personal  interests  usually 
outweigh  the  public  welfare.  If  he  has  the  instincts  of  a 
robber,  he  makes  war  on  his  neighbors  for  his  own  aggran- 
dizement, and  leads  his  subjects  out  to  be  maimed  and  slaugh- 
tered in  the  effort  to  kill  others.  Where  the  law-making 
bodies  are  composed  of  many  members,  factional  and  party 


INTRODUCTION  31 

expediency  often  leads  astray.  An  exchange  of  personal 
favors  between  members  at  the  public  expense  is  also  a  most 
fruitful  source  of  bad  legislation.  There  is  a  never  failing 
tendency  to  multiply  offices  and  increase  salaries  to  the  ut- 
most limit  that  the  people  will  bear.  This  is  true  of  all  forms 
of  government,  though  most  extreme  in  the  most  despotic. 
It  results  everywhere  from  mere  motives  of  personal  ex- 
pediency. 

There  is  a  further  question  in  which  no  moral  consideratiqn 
is  directly  involved,  yet  concerning  which  there  is  much  strife 
and  hot  contention.  What  business  functions  and  useful  en- 
terprises ought  the  state  to  conduct?  With  the  increasing 
disposition  and  capacity  of  men  to  combine  and  cooperate  in 
enterprises  calling  for  concert  of  action,  industries  have  de- 
veloped employing  great  numbers  of  men.  Railroad,  tele- 
graph, mining,  manufacturing  and  trading  companies,  deal 
with  so  many  people  that  their  management  becomes  a  mat- 
ter of  public  concern.  It  is  demonstrated  that  they  can  be 
operated  successfully  by  private  corporations  acting  through 
their  own  agents  and  officials  and  under  their  private  laws. 
It  is  also  shown  by  experience  that  some  of  them  can  be  suc- 
cessfully operated  by  public  agents.  The  question  then  is  pri- 
marily one  of  expediency.  Yet  expediency  deals  with  the 
selection  of  means  to  accomplish  ends,  and  we  often  find  pub- 
lic expediency  and  private  in  sharp  conflict.  Whenever  it 
can  be  truthfully  said  that  the  public  is  as  well  served  by  a 
private  owner  or  corporation  as  by  a  public  agency,  it  would 
seem  to  accord  with  the  principle  of  liberty  to  leave  the  busi- 
ness in  private  hands.  But  where  the  governing  agency  of  a 
private  corporation  uses  its  power  to  enrich  a  few  at  the 
expense  of  the  many,  or  fails  to  give  as  good  service  as  its 
revenues  warrant,  it  would  appear  necessary  to  either  effectu- 
ally supervise  or  assume  the  management  of  the  business. 
Supervision  necessitates  two  sets  of  managers,  one  for  the 
private  owner  and  the  other  for  the  public.  There  is  a  marked 
trend  in  the  direction  of  the  assumption  by  governments  of 
useful  business  functions,  but  no  modern  state  has  ever  ap- 
proximated the  business  organization  of  ancient  Peru,  which 


32  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

singularly  affords  a  model  of  state  ownership  of  the  ultimate 
title  to  all  the  land,  mines,  lishcries,  flocks  and  herds,  as  well 
as  the  roads  and  public  buildings. 

In  determining-  the  expediency  of  assuming  business  func- 
tions by  the  state  the  capacities  of  the  men  whom  it  can  and 
will  place  in  public  office  and  their  moral  purposes  arc  factors 
of  prime  importance.  No  mere  theory  of  organization,  how- 
ever attractive,  can  make  good  a  lack  of  capacity  for  the 
duties  imposed  on  public  agents.  Much  may  be  done  by  those 
charged  with  the  general  supervision  of  grant  enterprises  to 
systematize  and  simplify  the  work  of  each  subordinate,  and 
by  careful  instruction  in  their  respective  parts  to  qualify  men 
of  moderate  capacity  for  their  work.  This  is  equally  true 
under  public  and  private  management.  The  great  corpora- 
tions exhibit  great  inequality  in  the  apportionment  of  the 
benefit  of  the  combined  efforts  of  many  in  the  conduct  of 
their  business.  These  inequalities  are  based  in  part  on  the 
value  of  the  effort  contributed,  but  much  more  on  positions 
of  advantage  held  by  some,  due  to  the  government  of  the 
affairs  of  the  corporation  by  a  select  few.  This  results  from 
the  plan  now  generally  followed  of  allowing  a  majority  of 
the  stockholders  to  rule.  It  usually  insures  efficiency  and 
vigor  of  management,  but  at  the  expense  of  much  injustice. 
The  Post  Office,  operated  by  the  governments,  is  the  greatest 
and  best  business  organization  in  the  world,  and  is  a  model 
for  other  lines. 

The  legislature  makes  provision  for  public  schools,  in  all 
the  American  and  European  states,  with  some  few  exceptions. 
In  assuming  the  function  of  educating  the  young  in  public 
schools  modern  states  have  done  more  to  elevate  conceptions 
of  duty,  standards  of  morality  and  efficiency  in  all  lines  of 
activity  than  by  any  other  means.  Here  direct  public  super- 
vision has  been  shown  to  be  vastly  better  than  private  direc- 
tion. The  Hindoos  sought  to  insure  the  education  of  the 
twice  born  classes  by  requiring  the  instruction  of  the  youths 
as  a  religious  duty.  The  Chinese  encouraged  learning  by 
making  it  the  avenue  to  public  employment.  Modern  states 
give  instruction  as  a  preparation   for  all  the  duties  of  life. 


INTRODUCTION  33 

The  Hindoos,  the  Mohammedans  and  many  Christian  states 
regard  the  maintenance  of  the  estabhshed  religion  and  the 
observance  of  reHgious  forms  and  ceremonies  as  not  only  a 
legitimate  fmiction  of  government,  but  one  of  prime  im- 
portance. The  Chinese  regard  forms  and  ceremonies,  mourn- 
ings, costumes,  kneelings,  knockings  and  salutations  of  all 
kinds  as  matters  worthy  of  strict  regulation  by  the  state.  It 
is  difficult  to  perceive  that  any  moral  question  is  involved  in 
religious  ceremonial  or  the  formalities  of  Chinese  etiquette, 
though  education  and  the  general  consensus  of  opinion  may 
give  them  an  artificial  value  hard  to  comprehend. 

Except  where  limited  by  constitutional  restrictions,  as  in 
the  United  States,  the  legislature  is  free  to  select  its  fields  of 
activity,  to  choose  the  ends  it  will  try  to  accomplish  and  the 
means  it  will  employ  for  its  purposes.  It  may  deal  with  mat- 
ters affecting  the  welfare  of  the  individual  only,  with  those 
relating  to  the  intercourse  of  one  with  another,  and  with  all 
forms  of  organization  and  combination  of  men,  and  it  neces- 
sarily deals  with  the  political  organization.  Viewing  the 
limitless  field  of  possible  activity  and  the  varied  impulses  that 
representatives  from  all  parts  of  a  great  country  bring  to- 
gether, it  is  not  surprising  that  schemes  in  endless  variety 
are  presented  for  consideration.  As  a  condition  precedent  to 
any  improvement  there  must  be  a  suggestion  of  something 
new.  On  the  other  hand,  in  order  to  proceed  safely,  it  is 
necessary  that  a  new  rule  of  action,  to  be  followed  by  many 
'or  all,  should  be  well  understood  by  those  it  affects.  So,  much 
discussion  and  consideration  of  new  projects  is  indispensable. 
The  reformer,  imbued  with  the  great  value  of  his  scheme  is 
anxious  to  have  it  put  into  immediate  operation,  while  the 
conservative  objects,  inquires  and  hesitates  till  thoroughly  con- 
vinced that  it  is  good.  The  friction  caused  by  the  ardor  of 
those  who  propose  and  the  immobility  of  those  who  resist 
often  produces  heat  and  sometimes  conflagrations;  yet  the 
best  results  seem  to  call  for  something  of  this  process,  fol- 
lowed by  a  general  agreement.  Before  any  great  change  in 
the  order  of  things  can  be  of  full  benefit,  it  is  necessary  to 
prepare  the  ])ul)lir  mind   for  it  ami  educate  the  people  to  act 


34  EVOLTTTION  OF  GOVERNMENTS   AND  LAWS 

in  accordance  with  it.  The  French  revokition  clearly  exhibits 
the  force  of  habit  and  education  in  continuing  bad  systems  in 
spite  of  sweeping  reforms  devised  and  put  forth  by  the  legis- 
lative power.  Men  who  had  been  long  accustomed  to  obey 
a  master  could  not  at  once  find  prosperity  in  liberty.  The 
laborer,  who  has  always  performed  tasks  under  a  master  for 
wages,  may  be  and  often  is  incapable  of  conducting  a  business 
of  his  own  with  any  degree  of  success.  He  may  utterly  fail 
to  obtain  the  materials  necessary  for  his  employment  at  the 
only  work  he  knows  how  to  do.  The  greatest  human  achieve- 
ments requiring  the  combined  efforts  of  many  are  only  pos- 
sible of  accomplishment  by  specialization  and  division  of 
labor.  To  each  participant  some  part  must  be  assigned  which 
he  fully  understands.  There  must  be  intelligent  leadership, 
causing  all  to  move  harmoniously  with  strength  united  and 
not  opposing  the  force  of  one  to  another.  The  distribution 
of  the  profits  resulting  from  a  great  enterprise  may  be  most 
unequal  and  unjust,  so  that  those  who  furnish  the  capital  or 
direct  the  operations  receive  grossly  excessive  shares,  yet  if 
the  underpaid  laborers  are  incapable  of  carrying  on  the  busi- 
ness at  all  without  the  capital  or  supervision,  there  may  be  no 
other  alternative  but  to  continue  in  the  service  or  starve.  In 
all  attempts  to  substitute  a  just  for  an  unjust  system  it  is  in- 
dispensable that  those  who  are  to  be  benefited  be  educated  to 
act  according  to  the  new  plan. 

In  despotic  countries  every  combination  of  the  people  not 
directly  authorized  by  the  government  is  looked  on  with  sus- 
picion as  likely  to  breed  resistance  of  arbitrary  power.  In 
the  most  advanced  states  the  various  forms  of  voluntary  or- 
ganization promoted  by  private  citizens  are  almost  innumer- 
able. Their  numbers  and  size  bear  evidence  of  the  increasing 
confidence  of  man  in  his  fellows,  as  well  as  of  growing 
capacity  for  combined  effort.  The  earliest  charters  in  Eng- 
land and  the  American  colonies  were  granted  by  the  crown  or 
act  of  Parliament  or  colonial  legislature  as  a  special  favor. 
Now  corporations  may  be  formed  under  general  laws  for 
designated  purposes,  and  in  many  states  the  only  limitation  of 
purposes  is  that  it  be  to  carry  on  a  lawful  business  or  for 


INTRODUCTION  35 

social,  religious  or  charitable  purposes.  In  recent  years  vast 
fortunes  have  been  accumulated  by  ^>romoters  and  manipulat- 
ors of  corporations  by  more  or  less  dishonest  transactions  in 
their  stocks  and  bonds.  The  unscrupulous  men  and  the  im- 
morality of  their  methods  have  been  concealed  behind  the 
artificial  structure  of  the  corporation.  The  vast  aggregation 
of  capital  and  combination  of  men  under  the  control  of  the 
managers  of  the  great  business  corporations  in  the  United 
States  have  given  great  influence  to  them  in  political  and 
governmental  afi:airs.  All  departments  of  the  government 
have  been  more  or  less  tainted  by  their  insidious  and  often 
corrupt  methods.  One  of  the  great  problems  now  promi- 
nently before  the  people  is  that  of  correcting  and  prohibiting 
the  abuses  connected  with  these  great  business  organizations 
without  impairing  their  usefulness.  This  cannot  be  done  by 
merely  regulating  the  affairs  of  the  corporation  itself  as  an 
entirety.  It  seems  more  important  just  now  to  regulate  the 
operations  of  the  men  who  manipulate  corporations  and  their 
stock  and  bonds,  and  by  indirection  fleece  the  general  public 
and  oppress  the  employees  of  the  company.  The  immorality 
lies  in  the  accjuisition  of  unearned  fortunes  by  cunning  and 
fraud.  Even  when  the  people  are  fairly  informed  concerning 
the  evils  to  be  remedied,  the  practical  difficulties  to  be  en- 
countered in  devising  remedies  to  overcome  the  most  power- 
ful and  wealthy  combinations  in  the  country  are  very  great. 
Inordinate  private  fortunes  are  unhealthy  in  their  tendencies 
and  influence  on  the  body  politic.  The  simple  and  direct 
method  of  dissipating  them  is  by  the  use  of  the  taxing  power. 
Legislatures  deal  with  existing  conditions.  It  is  idle  to 
denounce  penalties  against  crimes  that  no  one  commits,  or 
that  are  so  rare  as  to  be  negligible.  Laws  affecting  property 
and  contract  rights  must  be  adapted  to  needs  either  present 
or  plainly  foreseen.  Men  differ  widely  in  their  views  on  the 
abstract  questions  of  ethics  involved  in  the  distribution  of  the 
proceeds  of  enterprises  to  which  many  persons  contribute  in 
various  ways.  One  fundamental  proposition  seems  to  be 
commonly  overlooked.  A  just  claim  to  wealth  in  excess  of  a 
fair  share  of  the  face  of  the  earth,  its  natural  products  and 


36  EVOLUTION  OF  GOVRRNMRNTS  AND  LAWS 

the  fruits  of  the  toil  of  past  generations,  must  be  based  on 
the  personal  services  of  the  claimant.  This  of  course  ex- 
cludes from  view  the  claims  of  the  helpless  and  dependent, 
and  applies  only  to  those  able  to  do  useful  service.  Service 
meriting-  reward  may  be  rendered  in  any  useful  form  of 
mental  or  physical  activity,  but  it  must  be  personal  service  of 
the  claimant.  In  morals  there  can  be  no  such  thing  as  vicar- 
ious earnings.  Personal  merit  affords  the  only  possible  basis 
for  a  just  claim  of  reward.  The  ways  in  which  one  may  be 
serviceable  to  his  fellow  men  are  numberless,  and  in  the 
multiplicity  and  complication  of  human  affairs  the  value  of 
the  service  and  the  designation  of  the  persons  who  ought  to 
give  the  compensation  for  it,  are  often  so  uncertain  and  ob- 
scure that  no  definite  rule  can  be  announced.  In  this  situation 
the  best  that  can  be  reasonably  demanded  is  a  fair  approxi- 
mation to  a  just  and  uniform  rule.  Yet  in  no  country  are 
the  laws  based  on  a  theory  requiring  personal  merit  as  a  basis 
of  property  rights.  In  the  United  States  unlimited  land  mo- 
nopoly is  allowed  and  protected.  The  only  limitations  on  the 
amount  and  kind  of  land  over  which  one  may  exercise  abso- 
luate  dominion  are  ability  to  purchase  or  otherwise  accpiire 
title  and  liability  to  taxation  and  the  exercise  of  the  power  of 
eminent  domain  under  which  it  may  be  purchased  for  strictly 
public  uses.  In  nearly  or  quite  all  civilized  countries  the  title 
to  land  and  movables  also  passes  by  inheritance  or  will  to 
designated  persons,  wholly  without  regard  to  merit,  needs, 
amount  and  capacity  or  disposition  to  use  properly.  A  small 
inheritance  tax  is  sometimes  imposed,  but  this  does  not  ma- 
terially affect  the  general  proposition.  On  the  other  hand  a 
very  large  part  of  the  people  have  no  land,  no  money  to  buy 
it  with  and  no  capital  of  any  kind.  Their  sole  dependence 
for  subsistence  is  on  employment  by  those  who  have  land  or 
other  capital  for  wages.  For  a  dwelling  place  they  are  de- 
pendent on  the  terms  imposed  by  landlords  and  their  ability 
to  get  wages  enough  to  satisfy  their  demands.  These  con- 
ditions exist  because  the  law  allows  them.  Are  the  laws  just 
in  these  respects?  Monopolies  of  coal,  oil,  gas,  iron,  copper 
and  other  mineral  products,  and  of  water,  waterpower,  trans- 


INTRODUCTION  37 

portation  lines,  means  of  transmitting  intelligence,  trade  and 
industry,  all  rest  on  a  similar  basis.  The  law  and  the  power 
of  the  state  protects  them.  The  courts  confirm  their  titles  and 
enforce  their  contracts  without  regard  to  public  interests. 
Established  legal  theories  and  rules  are  followed  without  re- 
gard to  fundamental  moral  principles.  Justice  demands  more 
than  that  the  destitute  citizen  shall  have  freedom  to  make  such 
contracts  for  his  services  as  he  can.  It  requires  that  it  be 
made  possible  for  him  to  make  just  contracts  through  which 
he  can  obtain  the  fair  value  of  his  services.  Justice  also  de- 
mands that  the  product  of  his  service  shall  go  to  the  one  for 
whose  ultimate  use  it  is  performed  without  the  addition  of 
any  unmerited  profit  to  the  employer  or  exploiter.  Monopoly 
of  every  kind  stands  between  the  producing  and  consuming 
classes  and  extorts  that  which  it  has  not  earned  and  does  not 
merit.  The  law-making  power  is  responsible  for  the  existence 
of  every  form  of  monopoly.  It  actively  promotes  or  passively 
tolerates  every  vice  that  inheres  in  monopoly.  In  the  final 
analysis  it  will  be  found  that  every  form  of  special  privilege 
and  unjust  advantage  has  its  root  in  the  law  and  endures 
only  because  it  is  protected  by  the  public  force.  The  socialists 
point  out  the  injustice  of  the  exploitation  of  labor  by  those 
who  control  the  capital.  The  remedy  they  propose  is  a  com- 
plete reorganization  of  society.  One  may  readily  concede  the 
soundness  of  their  criticisms  on  the  injustices  of  existing 
systems  without  approving  the  expedients  by  which  they  pro- 
pose to  remedy  them.  It  may  be  that  progress  toward  con- 
ditions of  ideal  justice  can  be  made  more  rapidly  by  the  use 
of  other  expedients  for  which  the  people  are  better  prepared 
by  custom  and  education.  The  single  tax  may  tend  to  un- 
dermine land  monopoly,  but  will  it  prevent  further  exploita- 
tion of  labor?  The  value  of  expedients  is  and  in  the  nature 
of  things  must  always  be  more  or  less  experimental.  The  ulti- 
mate moral  purposes  to  be  accomplished  by  the  legislatures 
will  remain  approximately  constant.  Experience  abundantly 
proves  the  inertia  and  resisting  power  of  habit  and  the  ex- 
treme diffirully  of  successfully  operating  a  new  system  fnr 
which  the  multitude  are  unprepared.     On  the  other  hand,  no 


4()!i37(> 


38  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

matter  what  the  form  of  government  or  plan  of  social  organi- 
zation, evils  clearly  defined  and  persistently  pointed  out  by 
those  in  a  jx^sition  to  influence  the  governing  body  may  always 
be  remedied  without  disrupting  the  bonds  of  social  order  to 
which  the  people  are  accustomed.  Revolution,  for  which  the 
people  are  fully  educated,  may  accomplish  great  reforms  sud- 
denly, but  revolution  for  which  the  people  are  unprepared  is 
quite  as  likely  to  retard  as  to  advance  the  cause  of  justice. 

The  forms  in  which  unmerited  revenues  are  now  drawn 
from  accumulated  wealth  are  mainly  rent,  interest  and  divi- 
dends on  corporate  stocks.  Rent  and  usury  are  old  forms  of 
revenue  and  have  been  declaimed  against  from  very  early 
times.  It  is  only  recently  that  corporate  stocks  have  become 
conspicuous.  Numberless  laws  have  been  promulgated  against 
usury,  varying  in  terms  all  the  way  from  absolute  prohibition 
cf  all  interest  to  the  allowance  of  all  the  parties  agreed  upon. 
Rent  has  often  been  declaimed  against  as  robbery.  The  de- 
fect in  the  reasoning  of  those  who  challenge  the  rightfulness 
of  claims  to  interest  and  rent  is  mainly  in  the  failure  to  go 
back  to  the  right  starting  point.  The  necessity  for  capital  in 
all  business  enterprises  and  the  universal  custom  of  giving 
its  owner  compensation  for  its  use  show  a  general  recognition 
of  the  merits  of  economy  and  prudence  in  the  accumulation 
and  preservation  of  property.  The  service  of  preserving  the 
grain  after  it  is  harvested  is  as  useful  as  that  of  raising  the 
crop.  He  who  performs  this  service  is  entitled  to  his  reward. 
Economy  in  use  is  a  merit  to  be  compensated  with  the  savings. 
But  property  unjustly  acquired,  or  gained  by  accident  of  birth 
or  favor,  affords  no  just  basis  for  an  income  in  any  form, 
except  as  the  possessor  earns  it  by  his  own  efforts  combined 
with  it  as  capital. 

Unearned  wealth,  no  matter  how  it  may  have  been  acquired, 
is  usually  either  soon  squandered  or  invested  in  land,  interest 
bearing  securities  or  corporate  stocks.  Modern  exotic  for- 
tunes are  all  largely  made  up  of  such  investments.  The  in- 
comes of  the  owners  derived  from  the  rents,  interest  and 
dividends  produced  from  such  investments  is  then  unearned 
tribute  paid  to  the  investors.     The  unjust  burden  may  not 


INTRODUCTION  39 

fall  on  the  ones  who  make  the  final  payments.  It  may  and 
often  does  happen  that  they  in  fact  profit  from  holding  an 
intermediate  position  and  that  the  real  burden  is  passed  on  to 
others.  This  may  be  illustrated  by  an  investment  made  in 
the  bonds  of  a  manufacturing  company  owned  by  a  stock 
gambler,  who  acquired  his  wealth  by  fraudulent  dealings  in 
the  stock  market.  The  manufacturing  company  by  use  of 
the  capital  in  a  business  protected  by  the  government  or  so 
overgrown  as  to  become  a  monopoly,  may  extort  inordinate 
profits  from  the  general  public  consuming  its  products  and 
make  profits  on  the  borrowed  capital  largely  in  excess  of  the 
interest  paid,  or  by  monopoly  of  the  labor  market  may  with- 
hold from  its  employees  revenue  that  justly  should  go  to 
them  as  wages.  In  such  cases  the  burden  of  the  interest  is 
passed  on  to  third  persons  with  the  addition  of  the  company's 
extortions,  and  both  borrower  and  lender  gain  unearned 
revenue.  Similarly  a  railroad  company  may  extort  excessive 
income  through  its  transportation  monopoly  or  withhold  fair 
wages  from  its  employees,  and  after  paying  interest  on  all 
its  invested  capital,  pay  dividends  on  stocks  for  which  nothing 
was  paid  and  which  therefore  represent  no  investment.  The 
unearned  interest  on  unearned  wealth,  so  invested  and  used, 
is  thus  paid  by  a  prosperous  company  out  of  funds  derived 
from  others.  Similar  illustrations  might  be  made  of  the  pass- 
ing on  to  third  persons  of  the  burdens  of  rent  and  dividends  on 
stocks.  The  farther  the  person  who  ultimately  bears  the  un- 
just burden  is  removed  from  the  ulitmate  beneficiary  of  it  the 
more  the  injustice  is  obscured  and  the  greater  the  difficulty  in 
obtaining  redress.  The  real  burden  in  all  such  cases  rests  on 
the  consumer  or  the  laborer  or  both.  The  vice  does  not  in- 
here in  rent,  interest  or  dividends  as  such,  but  in  the  lack  of 
moral  basis  for  a  demand  of  any  payment  in  any  form  to  the 
beneficiary.  It  is  because  the  property  from  which  they  are 
derived  is  an  unjust  acquisition  rather  than  that  rent,  interest 
and  dividends  are  essentially  unjust  in  their  nature. 

The  inception  of  title  to  unearned  wealth  everywhere  is 
largely  due  to  governmental  favoritism,  monopoly,  speculative 
operations  in  which  there  is  an  element  of  fraud,  breach  of 


40  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

confidence  or  extortion,  oambling-  and  trade  operations  having 
gambling  characteristics,  and  corporate  favoritisms  and 
manipulations.  Such  gains  are  all  clearly  immoral,  and  if 
full  justice  were  practicable  should  be  returned  to  the  sources 
from  which  they  were  derived.  Great  gains  not  infrequently 
come  from  fortunate  ventures  in  mining  and  legitimate  trade 
and  manufacturing,  and  from  great  inventions.  The  point 
at  which  such  accumulations  become  unwholesome  and  detri- 
mental to  the  public  interest  is  not  easy  to  define.  Perhaps 
it  may  safely  be  said  that  this  point  is  not  reached  until  there 
is  an  element  of  monopoly  or  oppression  attending  the  pos- 
session. So  long  as  the  use  made  of  them  promotes  the  gen- 
eral welfare  there  would  seem  to  be  no  ground  for  public 
interference  beyond  the  imposition  of  taxes.  Ownership  of 
land  which  the  owner  does  not  occupy  or  improve  and  for 
which  he  merely  takes  ground  rent,  partakes  of  the  nature  of 
monopoly.  The  universal  need  of  an  abiding  place  on  the 
face  of  the  earth  and  of  resort  to  its  natural  wealth  for 
subsistence  renders  land  monopoly  peculiarly  oppressive.  The 
safety  and  permanence  of  investments  in  land  make  them  at- 
tractive to  people  having  surplus  means.  Pride  also  is  grati- 
fied by  the  possession  of  large  estates.  These  influences 
operate  everywhere  and  the  cxtention  of  the  power  of  the 
wealthy  by  monopoly  (if  the  land  goes  on  more  rapidly  in  the 
United  States  than  in  any  other  great  country  because  the 
conditions  favor  rapid  accumulation  of  wealth  and  there  is 
full  liberty  to  make  unlimited  investment  of  profits  in  land. 
Monopoly  of  particular  products  and  lines  of  business  is  more 
noticeable  and  therefore  more  discussed,  but  it  lacks  the  per- 
manence and  fundamental  character  of  land  monopoly.  Mo- 
nopoly of  money  and  credits,  while  not  impossible,  is  more 
difficult  of  accomplishment.  It  is  always  only  partial  and 
temporary,  but  extremely  disasterous  in  its  effects. 

It  is  manifest  that  if  property  rights  were  determined  by 
the  rules  of  pure  ethics,  monopolistic  extortion  or  any  sort 
pf  fraud  or  crime  would  confer  no  title.  If  the  law-making 
power  were  chargeable  with  the  duty  to  make  provision  for 
righting  every  wrong,  it  would  be  necessary  to  have  inquiry 


INTRODUCTION  41 

made  into  the  sources  of  title  to  all  property  acquired  through 
any  such  immoral  means  and  make  full  restitution  to  all  who 
had  been  injured.  While  it  is  not  to  be  expected  that  any 
system  of  governmental  control  will  in  practice  work  out  ideal 
justice  in  every  case,  it  would  seem  that  in  theory  at  least  the 
rules  of  law  should  cover  the  whole  field  of  ethical  principles. 
The  moral  law  also  has  its  prohibitions  and  negations  and 
forbids  the  doing  of  positive  wrongs.  The  moral  law  forbids 
the  legislature  to  promulgate  any  law  the  natural  effect  of 
which  is  to  produce  unfair  conditions  for  or  unjust  relations 
between  any  of  the  people.  Yet  the  history  of  the  world  is 
full  of  instances  in  which  the  law  itself  has  directly  author- 
ized the  grossest  possible  oppression.  Slavery  has  always 
required  the  aid  of  the  state  in  enforcing  the  dominion  of 
the  masters.  The  state  thus  became  fully  responsible  for  all 
the  immoralities  of  slavery.  The  state  by  its  laws  determines 
how  title  to  the  face  of  the  earth  may  be  acquired,  transferred 
and  enjoyed.  The  vices  of  the  feudal  system,  which  virtually 
made  the  lords  of  the  manors  masters  and  the  tenants  on 
their  estates  slaves,  were  the  vices  of  the  state  and  perpetuated 
by  its  laws.  Modern  great  corporations  are  mere  creatures 
of  the  law,  called  into  being  by  it,  and  with  no  power  or 
vitality  beyond  that  given  them  by  the  state.  They  require 
the  active  intervention  of  the  courts  and  officers  of  the  law 
to  protect  them  in  the  exercise  of  their  functions.  The  great 
land  owner  requires  the  strong  arm  of  the  law  to  dispossess 
tenants  who  will  not  comply  with  his  terms.  In  free  America 
he  may  drive  everybody  from  his  land  who  will  not  pay  tlie 
rent  he  demands,  and  in  doing  this  the  state  is  his  servant  and 
executes  his  commands  in  accordance  with  the  theory  of  his 
absolute  dominion  over  so  much  of  the  face  of  the  earth  as 
he  has  lawful  title  to.  Monopolies  of  all  kinds  and  sorts  are 
either  created  or  allowed  by  the  state,  and  are  always  depend- 
ent on  its  protection.  The  government  then  is  directly  re- 
sponsible for  all  tlie  wrongs  and  immoralities  authorized  by 
it  or  which  are  necessary  incidents  of  them.  It  can  no  more 
escape  responsibility  for  the  injustice  which  results  from  its 
laws  (jf  property  than  fnmi  lli.it  which  inheres  in  the  institu- 
tion r)f  slavery. 


42  EVOLUTION  OF  GOVERNMENTS  A'ND  LAWS 

The  general  run  oi  legislative  enactments  deals  merely 
with  details  and  incidents  of  the  existing  system.  Funda- 
mentals are  seldom  considered  unless  brought  to  view  by  some 
political  upheaval.  But  in  dealing  with  incidents  antl  details 
the  compass  and  chart  of  ethical  principles  should  always  be 
looked  to  for  safe  guidance  in  the  right  direction.  vSound 
morality  is  not  to  be  confined  in  the  homes  or  the  promulga- 
tion of  it  left  exclusively  to  religious  teachers.  The  legisla- 
ture is  not  only  itself  morally  bound  to  follow  ethical 
principles  in  all  its  enactments,  but  in  order  "to  promote  the 
general  welfare"  is  also  charged  with  the  duty  to  exert  its 
full  powers  in  the  dissemination  of  such  princii>les  and  pro- 
curing the  observance  of  them.  Ethical  princijjles  are  not 
necessarily  rules  of  cokl,  hard  and  gloomy  morality,  denying 
all  pleasure  and  requiring  mortification  of  the  flesh  without 
leason.  They  are  the  rules  that  bring  to  humanity  the  maxi- 
nuun  of  love,  joy  and  exuberant  life,  so  ordered  that  these 
blessings  propagate  their  kind,  continue  and  multiply  in  all 
directions. 

It  may  be  said  that  this  is  the  domain  of  religion  and  of 
parental  instruction  rather  than  of  governmental  direction. 
True  religion  of  course  teaches  the  immutable  laws  of  the 
Creator,  which  cannot  l^e  other  than  the  living  moral  law. 
The  most  serious  objection  to  religious  teaching  is  that  its 
doctrines  are  asserted  dogmatically,  as  having  divine  sanction 
and  admitting  no  possible  errors.  Religious  establishments 
are  subject  to  many  of  the  evil  influences  that  affect  secular 
governments.  The  men  wdio  direct  their  affairs  resort  to 
human  expedients  for  their  personal  gratification  and  pro- 
mulgate falsehood  and  immorality  as  having  divine  sanction. 
The  mere  claim  of  divine  authority  for  their  teachings  re- 
sults in  many  places  and  for  long  j^eriods  of  time  in  precluding 
inquiry  into  the  truth  of  them.  I'^air  illustrations  of  the  ex- 
treme aberrations  of  the  religicnis  hierarchies  are  in  the  sacri- 
fices of  the  ancient  Mexicans,  the  Druids,  the  Hindoo  sati, 
the  Holy  Inquisition  of  the  Church  of  R(;me  a  few  centuries 
ago  wdth  the  frightful  torture  and  burning  at  the  stake  of 
innocent  men  for  the  fictitious  crime  of  heresy,  and  the  Mo- 


INTRODUCTION  43 

hammedan  propagation  of  the  word  by  the  sword.  Less 
vicious  are  the  more  modern  extortions  of  contributions  from 
needy  people  to  maintain  the  pomp  and  magnificence  of  church 
estabhshment,  ceremonial  and  priestly  trappings;  supersti- 
tious awe  of  beasts,  birds  and  reptiles  as  in  India  and  ancient 
Egypt  and  the  worship  of  idols,  images,  relics  and  symbols. 
With  such  forms  of  darkness  religious  law-givers  have  ob- 
scured the  light  and  beauty  of  life.  The  overshadowing  fault 
of  all  great  religious  systems  is  that  they  constantly  claim 
divine  authority  and  sanction  for  .  falsehood  and  a  divine 
commission  to  close  the  door  against  all  searchers  for  truth. 
The  responsibility  for  the  good  conduct  of  each  individual 
rests  primarily  with  himself.  The  ideal  state  of  society  is 
one  in  which  each  person  of  his  own  accord  adheres  strictly 
to  fhe  moral  law  and  discharges  all  his  social  duties.  What- 
ever the  form  of  government  or  the  system  of  laws  promul- 
gated by  the  legislative  power,  the  heart  and  life  of  society 
will  still  depend  on  the  general  average  of  voluntary  indi- 
vidual conduct.  Wherever  there  is  a  general  disposition  to 
be  just,  helpful  and  cheerful,  there  will  be  little  need  of  legis- 
lative rules  to  supplement  the  moral  law.  On  the  other  hand, 
where  avarice,  hatred  and  distrust  prevail,  no  governmental 
supervision  can  possibly  fill  the  requirement. 

Legislative  Expedients 

The  legitimate  field  of  legislative  expedients  is  of  vast  di- 
mensions and  one  in  which  hiw-makers  may  still  find  ample 
employment  after  it  ceases  to  be  necessary  to  direct  the  morals 
of  the  people.  Where  men  combine  for  the  common  good,  it 
is  necessary  to  determine  the  form  of  the  combination  and 
the  part  to  be  performed  by  each  j)articipant.  The  national 
government  of  the  United  States  is  a  combination  for  cer- 
tain general  purposes.  The  framers  of  the  Constitution  dealt 
mainly,  almost  exclusively,  with  questions  of  expediency  in 
providing  instrumentalities  to  carry  out  these  purposes.  They 
established  executive,  legislative  and  judicial  agencies  to 
severally  perform  si)ecific  functions.  Instead  of  combining 
all  powers  in  r»ne  man  or  set  of  men  they  divided  them  so 


44  EVOLUTION  OF  GOVGRNMENTS  A'ND  LAWS 

that  each  should  be  a  check  on  the  other.  They  vested 
the  executive  power  in  a  president,  the  legislative  power  in 
Congress,  and  the  judicial  power  in  courts.  In  forming- 
Congress  of  two  houses  differently  chosen  they  acted  wholly 
on  considerations  of  expediency.  There  is  no  moral  ques- 
tion involved  in  the  distribution  of  the  powers  of  gov- 
ernment among  the  three  coordinate  branches,  but  it  was 
deemed  wise  to  do  so,  mainly  because  experience  had  shown 
that  where  all  the  powers  were  combined,  personal  interests, 
ambitions  and  passions  often  dictated  governmental  policy  to 
the  public  detriment.  It  was  thought  that  by  a  division  of 
powers  each  branch  of  the  government  would  act  as  a  check 
on  the  others  to  confine  them  to  the  performance  of  the  bene- 
ficial functions  for  which  they  were  established.  With  such 
a  distribution  of  powers  public  expediency  is  deemed  rftore 
likely  to  find  expression  through  the  public  agencies  than  mere 
personal  expediency.  Similar  princij)les  were  applied  in  the 
state  constitutions.  Acting  under  these  constitutions  law- 
making bodies  have  established  public  agencies  of  various 
kinds.  Most  of  these  are  deemed  necessary  for  the  public 
welfare.  Some  are  places  created  for  favorites,  and  others 
to  promote  party,  rather  than  public,  ends.  Here  personal  ex- 
pediency overrides  not  only  public  expediency  but  also  the 
moral  law. 

As  governments  slough  off  their  warlike  and  vindicitive 
functions  and  take  on  more  beneficent  ones,  an  ever  widening 
field  of  possible  usefulness  is  presented.  As  sentiments  of 
hatred  diminish  and  kindness  and  mutual  confidence  increase, 
the  necessity  for  war  passes  away  and  men  of  all  countries 
join  in  all  kinds  of  religious,  charitable,  social  and  business 
organizations.  The  law-making  power  has  much  concern 
with  great  private  combinations.  In  despotic  countries  they 
are  viewed  with  suspicion  because  they  may  possibly  conceal 
revolutionary  schemes.  In  the  United  States  great  business 
combinations  exert  undue  influence  on  Congress,  state  legis- 
latures and  administrative  officers.  The  practical  question 
how  the  beneficial  activities  of  all  such  combinations  can  best 
be  preserved  and  promoted  and  their  evil  tendencies  curbed 


INTRODUCTION  45 

is  one  of  much  difticulty.  The  measure  of  hberty  to  be  ac- 
corded to  all  citizens  in  forming  combinations  for  lawful 
purposes  is  a  question  of  expediency  to  be  determined  by  the 
legislative  power.  It  is  also  a  question  of  expediency  as  to 
how  and  to  what  extent  their  operations  should  be  supervised 
by  the  government. 

In  reference  to  the  useful  functions  which  the  state  itself 
should  assume  as  a  political  organization  there  is  extreme  di- 
versity of  opinion,  ranging  all  the  way  from  curtailment  of 
the  powers  now  exercised  by  the  government  to  the  schemes 
of  the  socialists  and  communists  who  would  have  state  man- 
agement of  most  or  all  industries  and  common  ownership  of 
land  and  capital  employed  in  industries.  Shall  the  state  own 
and  operate  railroads,  telegraphs,  telephones,  mines,  factories, 
ships,  farms,  stores,  warehouses,  banks,  waterworks,  gas, 
light,  heat  and  power  plants,  build  dwellings,  carry  on  the 
business  of  insurance,  maintain  hospitals  and  provide  medi- 
cal treatment  for  the  sick ;  in  fine  what  and  how  much  much 
if  any  of  the  businesses  now  conducted  by  private  persons 
ought  the  state  to  undertake  ?  These  questions  have  provoked 
many  hot  discussions,  conflicts  and  some  bloodshed.  Men 
sometimes  treat  them  as  involving  vital  questions  of  morals. 
They  are  in  fact  mere  questions  of  expediency,  experimental 
in  their  nature,  more  or  less  temporary  in  character,  and 
reasonably  certain  of  kaleidoscopic  changes  of  aspect.  Har- 
monious concert  of  action  for  the  accomplishment  of  desirable 
ends  is  the  great  desideratum.  Expediency  must  find  the 
way  for  it,  not  partial  selfish  expediency,  but  just  public  ex- 
pediency. The  moral  law  applies  to  all  people  at  all  times 
and  under  all  circumstances.  Expediency  is  special,  tempo- 
rary and  must  be  adapted  to  conditions.  In  determining 
what  tasks  may  safely  be  assigned  to  a  person  it  is  necessary 
to  know  his  physical,  mental  and  moral  strength,  his  habits  of 
body  and  mind,  his  purposes  and  desires,  the  influences  with 
which  he  is  surrounded,  the  education  he  has  received  and 
every  other  circumstance  likely  to  afl'ect  his  conduct.  It  is 
possible  to  utilize  men  of  every  grade  and  kind.  The  difticulty 
lies  in  putting  each  in  his  appropriate  place  and  keeping  him 


46  EVOLUTION  OF  GOVERNMENTS  A'ND  LAWS 

there.  Concert  of  action  amonj^  many  implies  specialization 
and  leadership.  Tlow  shall  the  leaders  be  chosen?  In  enter- 
prises conducted  l)y  the  i^overnment  they  are  appointed  by 
public  authority  or  elected  by  the  people.  In  those  carried  on 
by  private  persons  the  general  rule  is  that  those  who  furnish 
the  capital  determine  the  plan  of  organization  and  make  the 
selection  of  leaders.  In  cooperative  enterprises  those  who  are 
served  by  the  organization  select  their  agents  and  direct  their 
work.  The  United  States  now  exhibits  the  greatest  business 
combinations  under  private  management  that  have  ever  been 
known.  Ancient  Peru  affords  an  illustration  of  the  most 
advanced  governmental  direction  of  industry  that  we  have 
any  account  of.  Under  the  despotism  of  the  Incas  a  people 
completely  isolated  from  all  other  civilized  nations,  without 
knowledge  of  letters  or  the  use  of  iron,  without  horses  or 
cattle  or  any  of  the  modern  mechanical  inventions,  tilled  the 
soil,  Iniilt  temples  and  dwellings,  roads,  bridges  and  great 
stone  aqueducts,  wove  fabrics  for  clothing  and  decorations, 
defended  themselves  against  their  savage  neighbors  and  lived 
in  plenty  and  security.  The  government  was  one  great  busi- 
ness organization  in  which  every  officer  had  useful  functions 
to  perform  for  the  general  good.  All  were  required  to  marry, 
and  all  were  furnished  homes  and  land  to  till.  There  were 
no  landlords  to  collect  rent,  no  usurers  to  extort  interest,  no 
promoters  taking  anticipated  profits  of  labor,  no  exploiters 
monopolizing  natural  resources.  Every  one  had  his  share  of 
the  land  assigned  to  him  each  year  and  his  share  of  the  pro- 
ducts of  the  shearing  of  the  flocks,  and  of  the  mines  and  the 
fisheries.  There  were  no  rich  living  from  the  labors  of  others, 
no  paupers,  no  beggars,  no  prostitutes.  With  the  added  ad- 
vantages of  modern  inventions  what  would  they  have  accomp- 
lished and  how  would  they  have  lived?  How  much  of  their 
system  could  be  successfully  adapted  to  modern  conditions 
under  free  institutions  and  among  people  who  deny  the  di- 
vinity of  all  priestly  establishments?  If  the  tie  of  common 
brotherhood  could  be  recognized  by  all  in  its  fullness  and 
entirety  the  difficulty  might  vanish,  but  unfortunately  we  are 
now  very   far   from   it.      We   are  however  rapidly   breaking 


INTRODUCTION  47 

down  the  walls  of  prejudice  that  have  so  long  separated  and 
antagonized  the  nations  with  each  other.  Already  there  is  a 
faint  perception  of  a  universal  bond  of  human  fellowship. 
The  telegraph,  telephone,  printing  press,  railroad  and  steam- 
boat, make  near  neighbors  of  the  most  distant  people.  Busi- 
ness combinations  are  not  confined  within  a  city,  county,  state 
or  nation,  but  some  of  them  are  world  wide.  Men  of  all  races 
and  nationalities  unite  their  efiforts  in  carrying  them  on.  The 
International  Postal  Union  transports  and  delivers  mail  in 
every  part  of  the  civilized  world  at  the  least  possible  expense. 
This  is  a  purely  public  expedient,  adopted  and  utilized  by  the 
governments  of  all  the  nations.  It  conducts  the  greatest  busi- 
ness enterprise  ever  organized.  The  railroads  are  operated 
by  the  governments  in  some  countries  and  by  private  corpora- 
tions in  others.  In  Europe  the  telegraphs  are  mostly  owned 
by  the  government.  In  the  United  States  they  are  owned  by 
private  monopolies.  We  have  transportation  companies, 
manufacturing  and  mining  companies  in  great  number,  among 
which  are  many  which  severally  employ  tens  of  thousands  of 
men  of  all  races  gathered  from  all  the  quarters  of  the  globe. 
We  also  have  ship  yards  and  other  great  establishments  oper- 
ated by  the  government.  Our  great  works  in  our  harbors  and 
rivers  are  carried  on  by  the  government,  which  also  maintains 
lighthouses  and  life-saving  stations.  Public  roads  and  bridges 
other  than  those  used  for  railroads  are  built  and  maintained 
by  the  public.  It  is  needless  to  multiply  illustrations  in  order 
to  sh(jw  that  great  businesses  may  be  carried  on  successfully 
either  by  the  state,  nation  or  private  combinations.  It  is  some- 
times assumed  that  there  is  a  difference  in  the  nature  of  the 
businesses  which  are  successfully  carried  on  by  public  authori- 
ties and  of  those  under  private  management,  but  is  there  any 
fundamental  distinction  of  kind?  Is  there  in  the  nature  of 
things  an  essential  difference  between  the  business  of  trans- 
porting and  delivering  packages  weighing  an  ounce  and  those 
weighing  one  (jr  ten  pounds?  Is  there  a  fundamental  differ- 
ence between  the  business  carried  on  in  a  mail  car  and  that  in 
an  express  car?  Is  the  business  of  transporting  persons  and 
property  essentially  different  in  its  nature  fmni  that  of  carry- 


48  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ine-  tlie  mails?  Is  there  an  essential  difference  between  the 
business  of  building  ships  for  war  and  that  of  building  them 
for  commercial  uses?  Is  there  a  difference  of  kind  between 
the  business  of  casting  guns,  making  armor  plate  and  gun 
carriages  and  that  of  making  steel  rails  and  railroad  cars?  In 
producing  and  transporting  military  supplies  of  all  kinds 
governments  undertake  and  carry  on  any  branch  of  business 
that  seems  necessary  to  meet  the  emergency.  Under  the  pres- 
sure of  war's  exigencies  they  throw  to  the  wind  all  nice 
theories  concerning  such  matters  and  adopt  such  expedients 
and  methods  as  seem  best  calculated  at  the  time  to  accomplish 
the  desired  results.  Is  there  a  fundamental  difference  between 
the  production  of  instruments  of  destruction  and  of  those  for 
beneficial  use?  Manifestly  it  is  not  a  (piestion  of  principle 
or  morals  but  merely  of  expediency.  It  is  f(jr  the  law-making 
power  to  adopt  whatever  plan  appears  to  be  the  best  adapted 
to  accomplish  the  public  purposes. 

But  what  are  public  purposes  as  distinguished  from  private 
ones?  Of  late  a  distinction  has  been  drawn  between  private 
businesses  affected  with  a  public  use  and  those  not  so  affected. 
Based  on  this  distinction  laws  have  been  enacted  providing 
for  the  regulation  of  some  businesses  affected  with  a  public 
use,  and  the  power  to  similarly  regulate  those  not  so  affected 
has  been  denied.  The  specialization  of  industry  makes  all  the 
people  of  a  highly  civilized  state  interdependent.  All  are  de- 
pendent on  the  products  of  agriculture  for  subsistence.  Re- 
striction of  production  may  mean  scarcity,  high  prices  or 
famine.  All  are  dependent  on  the  manufacturers  for  cloth- 
ing and  household  goods.  An  abundance  at  low  cost  is  de- 
sired by  all  consumers.  Any  combination,  regulation  or 
restriction  on  manufacturing  activity  that  reduces  production 
below  the  public  requirements  or  artificially  advances  prices 
above  a  just  compensation  for  the  service  is  detrimental  to  the 
public  interest.  All  are  dependent  on  the  mines  for  supplies 
of  coal,  oil  and  metals.  Mining  monopolies  through  which 
unearned  wealth  is  extorted  from  consumers  are  matters  of 
public  concern.  It  follows  that  the  production  of  mineral 
wealth  is  a  matter  of  general  interest  calling  for  legislative 


INTRODUCTION  49 

care.  All  .are  dependent  on  the  railroads  as  well  as  the  other 
highways  of  commerce,  and  on  the  telegraph  and  telephone 
as  well  as  the  mails  for  means  of  inter-communication.  Sup- 
plies of  food  clothing  and  fuel  are  absolutely  dependent  on 
transportation  facilities.  Where  then  may  a  line  be  drawn 
between  one  part  of  these  lines  of  business  and  the  other 
distinguishing  that  affected  with  a  public  use  from  that  not 
so  affected?  Can  such  a  line  be  drawn  elsewhere  than  be- 
tween all  the  productive  activities  on  the  one  side  and  the 
nonproductive  and  destructive  on  the  other?  Is  it  possible 
to  eliminate  the  parasitic  classes,  which  now  absorb  so  much 
of  the  products  of  industry,  by  fully  protecting  the  useful  ones 
against  their  methods?  Could  modern  society  eliminate  its 
drones  and  barnacles  with  as  great  success  as  ancient  Peru? 
The  great  moral  purpose  to  be  kept  constantly  in  view  by 
the  law-making  power  is  to  bring  about  a  constantly  nearing 
approximation  to  conditions  affording  substantial  justice  be- 
tween all  the  people,  individually  and  collectively,  and  the 
most  ample  provision  for  their  physical,  mental  and  moral  wel- 
fare. Elsewhere  than  in  ancient  Peru  the  conduct  of  most 
productive  enterprises  has  always  been  left  under  private 
management  for  private  profit.  In  recent  years  business  com- 
binations of  all  kinds,  but  more  especially  those  engaged  in 
transportation,  manufacturing,  mining  and  commerce  have 
taken  the  form  of  private  corporations.  Capital,  management, 
skill  and  labor  are  made  the  bases  for  the  distribution  of  the 
gains  of  the  common  enterprise,  with  the  result  that  the  bur- 
dens and  benefits  are  often  most  unequally  distributed.  It  is 
the  exclusion  from  these  combinations  of  all  altruistic  im- 
pulses, the  lack  of  human  sympathy,  that  gives  to  some  of 
them  their  cold  and  steely  character.  The  managing  power, 
the  board  of  directors,  is  almost  universally  merely  a  repre- 
sentative of  the  stockholders,  who  have  contributed  the 
capital.  Neither  the  employees  nor  the  public  have  any  repre- 
sentation ill  the  management,  nor  any  control  over  its  policy. 
The  cmj)]ovcr  seems  to  be  the  natural  manager,  and  corpora- 
tions ]ia\T  dcvclopcfl  along  what  appear  (o  be  natural  lines.  It 
is  found,  however,  that  corporations  performing  functions  on 


so  EVOLUTION  OF  GOVERNMENTS  A'ND  LAWS 

which  the  pubhc  arc  dependent,  and  which  are  either  natnral 
or  artificial  monopohes,  may  become  oppressive,  and  that 
owners  may  ignore  not  only  altruism  but  justice  and  decency. 
When  such  conditions  are  presented  the  legislature  is  con- 
fronted with  the  practical  ciuestion  of  finding  an  efficient 
remedy.  Will  it  undertake  to  supervise  and  reform  the  ex- 
isting system  or  substitute  a  new  one?  Can  it  convert  an 
oppressive,  dishonestly  managed  corporation  into  a  beneficent, 
honest  one  by  supervising  its  operations?  Can  public  agencies 
be  established  of  superior  efficiency  in  place  of  the  private 
ones?  The  modern  trend  of  legislation  in  the  United  vStates 
is  along  lines  of  supervision  rather  than  the  direct  assump- 
tion by  the  government  of  new  business  functions.  This  is 
attempted  in  two  ways;  by  general  laws  designed  to  regulate 
charges  for  service  to  the  public,  imposing  duties  to  be  per- 
formed and  forbidding  harmful  activities.  The  enforcement 
of  such  laws  as  to  most  classes  of  corporations  and  as  to  all 
classes  in  most  cases  is  left  to  the  courts  by  the  usual  methods. 
These  imply  a  complaint  on  the  part  of  the  United  States  or 
a  state  for  a  violation  of  a  penal  statute,  or  of  a  private  suitor 
for  the  enforcement  of  a  right  or  the  redress  of  a  wrong. 
Where  the  controversy  is  between  a  powerful  corporation  and 
a  private  citizen  of  moderate  means  results  are  not  satisfac- 
tory. The  great  corporation,  by  reason  of  the  number  of 
cases  brought  for  and  against  it,  is  represented  by  attorneys 
and  officers  who  become  familiar,  sometimes  too  familiar, 
with  the  judges.  The  private  citizen  is  not  ordinarily  so  rep- 
resented. Under  such  circumstances  favoritism  for  the  cor- 
poration is  often  charged,  especially  against  judges  holding 
by  life  tenure.  On  the  other  hand  juries  are  more  likely  to 
incline  toward  the  private  citizen,  and  elective  judges  are 
often  charged  with  seeking  popular  favor  at  the  expense  of 
unpopular  corporations.  Though  the  parties  to  such  contro- 
versies are  theoretically  equal  before  the  law,  they  are  not  so 
in  fact.  Recognizing  the  necessity  for  further  interference 
on  behalf  of  the  ])ublic,  Congress  has  provided  for  the  in- 
spection and  supervision  of  national  banks  by  the  Comptroller 
of  the  Currency,  and  the  states  have  adopted  a  smilar  system 


INTRODUCTION  51 

of  regulating  state  banks  through  a  bank  commissioner.  The 
states  also  provide  a  similar  supervision  of  the  business  of 
insurance  through  their  insurance  departments.  More  re- 
cently Congress  has  provided  the  Interstate  Commerce  Com- 
mission for  the  regulation  of  the  business  of  common  carriers 
engaged  in  interstate  commerce,  and  many  of  the  states  have 
similar  commissions  to  supervise  such  carriers  v^ithin  the 
state.  In  a  few  states  the  functions  of  such  commissions  have 
been  extended  over  various  other  public  utilities.  The  func- 
tions exercised  by  these  various  commissions  are  usually 
classed  as  executive  or  administrative,  but  it  is  found  by  ex- 
perience that  to  be  efficient  and  accomplish  satisfactorily  the 
purposes  for  which  they  are  designed,  it  is  necessary  that 
they  should  also  have  other  powers  generally  regarded  as 
legislative  and  judicial.  Numerous  acts  creating  such  com- 
missions have  been  declared  unconstitutional  on  the  ground 
that  they  combined  and  confused  the  powers  of  the  three 
separate  coordinate  departments  of  the  government. 

The  purpose  of  mentioning  these  diflicultics  here  is  to  show 
the  general  aspects  of  the  question  presented  to  the  law- 
making power  in  dealing  with  great  business  combinations. 
The  officers  and  commissions  mentioned  occupy  a  position  in 
the  governmental  systems  inferior  to  the  legislative  body,  in- 
ferior to  the  courts  and  to  the  chief  executive.  The  essence 
of  despotism  is  the  combination  of  all  kinds  of  political  power 
in  the  same  hands  without  any  superior  power  to  prevent 
abuses.  The  advantages  possible  to  be  derived  from  the  exer- 
cise of  despotic  power  are  promptness  and  efficiency.  A  com- 
mission authorized  to  make  rules  for  the  government  of  great 
business  enterprises  and  to  enforce  them  summarily  is  poten- 
tially capable  of  remedying  the  evils  of  corporate  misconduct. 
The  power  merely  to  make  an  order  which  can  only  be  en- 
forced by  an  executive  officer  after  a  trial  and  judgment  of 
a  court  of  original  jurisdiction  and  a  review  in  ,-ni  appellate 
court  according  to  the  prevailing  system  is  wholly  inefficient 
for  the  control  of  great  interests.  Courts  move  altogether  too 
slowly  and  deliberate  quite  too  long  to  be  effiicient  in  meeting 
the  exigencies  of  business  in  this  nianner.     They  are  however 


52  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

much  more  efficient  when  acting  through  receivers  appointed 
and  removed  by  them  at  pleasure.  The  receiver  takes 
full  charge  of  the  business  and  conducts  it  in  accordance  with 
the  orders  of  the  court  with  the  very  great  advantage  of  the 
protection  of  the  court  against  all  outside  interference.  Courts 
acting  through  receivers  in  fact  exercise  precisely  the  same 
combination  of  powers  deemed  unconstitutional  in  the  hands 
of  commissions.  If  large  combined  powers  are  conferred  on 
public  agencies  the  spirit  in  which  such  powers  will  be  exer- 
cised depends  largely  on  the  influences  governing  the  selection 
of  the  men  chosen  for  them.  It  has  often  happened  that  the 
public  agents  have  been  chosen  by  the  very  interests  they 
were  expected  to  regulate.  Under  every  form  of  government 
from  absolute  despotism  to  democracy  the  men  directly  inter- 
ested in  the  exercise  of  any  governmental  function  are  usually 
the  most  active  and  influential  in  securing  the  appointment  or 
election  of  agents  to  perform  such  functions.  The  richer  and 
more  powerful  the  combination  of  interests  to  be  controlled 
the  greater  the  influence  on  the  selection  of  the  agents  and 
on  their  action  afterward.  It  not  only  may  happen  but  has 
happened  many  times  that  special  interests  have  dictated  the 
policy  of  one  or  both  branches  of  Congress  and  of  state  legis- 
latures. The  law-making  power,  designed  to  promote  the 
welfare  of  all,  in  fact  sometimes  promotes  the  interests  of  the 
few  at  the  expense  of  the  many.  It  is  readily  apparent  that 
combined  powers  somewhat  despotic  in  character  are  poten- 
tially most  useful,  and  also  susceptible  of  the  greater  abuses. 
Where  such  powers  are  to  be  exercised  only  in  supervising 
and  correcting  abuses  in  one  or  a  few  designated  lines  of 
business,  and  where  the  public  agents  exercising  them  are  sub- 
ject to  removal  by  the  appointing  power  at  will  or  after  brief 
terms,  the  danger  of  abuse  of  them  is  not  great.  In  all  cases 
however  they  add  to  the  public  burdens  the  salaries  and  ex- 
penses of  their  offices. 

Where  the  government  undertakes  to  perform  new  business 
function  through  its  own  agents  the  element  of  profit  to  pri- 
vate investors  is  eliminated  and  with  it  all  private  manage- 
ment and  salaries  of  private  corporate  officers.     The  whole 


INTRODUCTION  S3 

problem  is  simplified  to  the  performance  of  the  service  and 
the  collection  of  revenues  to  pay  the  expenses  of  it.  The 
Post  Office  affords  the  leading  illustration  of  a  continuing 
great  business  conducted  by  the  government,  and  the  construc- 
tion of  the  Panama  Canal  of  a  great  public  work  carried  on 
by  public  agents  at  public  expense.  These  functions  are  ex- 
ercised by  a  republic.  The  pyramids  of  Egypt,  the  walls  and 
canals  of  Babylon  and  the  Chinese  wall  are  instances  of  vast 
enterprises  carried  to  completion  at  public  expense  under  des- 
potisms. The  polity  of  ancient  Peru  exhibits  the  possibilities 
of  a  despotic  government  engaged  in  directing  the  useful  ac- 
tivities of  its  people  as  well  as  its  wars.  It  also  shows  how  a 
clearly  defined  general  purpose  of  promoting  the  general  wel- 
fare and  the  systematic  inculcation  of  the  principles  and 
knowledge  necessary  to  the  accomplishment  of  it,  may  over- 
come most  of  the  evil  tendencies  of  despotism  and  many  of 
those  of  popular  governments.  The  great  lack  in  Peru  was  of 
private  initiative  and  invention.  Freedom  to  effect  voluntary 
combinations  to  accomplish  lawful  purposes  is  the  foundation 
of  modern  business  progress.  The  governmental  and  business 
organization  of  the  United  States  and  of  the  leading  nations 
of  the  east  is  exceedingly  complex,  and  most  complex  in  the 
most  advanced  nations.  Does  improvement  lie  in  the  direc- 
tion of  simplification  or  of  further  complications?  The  moral 
law,  which  is  always  above  the  legislature,  commands  the  elim- 
ination of  injustice  and  wrong  and  the  promotion  of  the  wel- 
fare of  all.  The  law-makers  must  choose  the  expedients  for 
the  accomplishment  of  these  ends. 

As  the  moral  responsibility  for  his  acts  rests  primarily  with 
the  individual,  so  the  moral  responsibility  for  the  acts  of  men 
who  combine  as  a  corporation  rests  primarily  with  them  and 
the  agents  they  appoint.  It  is  a  practical  question  as  to  how 
far  the  state  will  take  cognizance  of  the  misdeeds  and  short- 
comings of  private  citizens,  and  the  question  concerning  pri- 
vate corporations  is  similar  if  not  identical  in  principle.  It 
is  impossible  to  remedy  all  evils.  Experience  and  observation 
indicate  the  tasks  which  are  most  urgent  and  which  the  forces 
within  the  command  of  the  state  are  capable  of  accomplishing. 


54  F.VO'LITTTON  OF  GOVIERNMENTS  AND  LAWS 

A  consideration  of  prime  importance  is,  what  measure  of 
integrity  and  capacity  can  the  state  provide  for  the  given  task. 
Theories  of  organization  are  highly  important,  but  men  with 
the  capacity  and  disposition  to  carry  them  out  are  indispen- 
sable. The  evils  of  autocracy  arise  mainly  from  the  lack  of 
those  moral  restraints  on  the  conduct  of  ofiicials  which  ac- 
countability to  the  people  for  their  acts  would  impose.  The 
leading  evils  connected  with  the  dealings  of  great  corporations 
are  mainly  due  to  the  same  lack  of  accountability.  Their 
officers,  agents  and  employees  usually  find  their  conduct  ap- 
proved if  it  results  in  profit  to  the  owners,  without  regard  to 
its  effects  on  others.  In  many  cases  no  harm  comes  from  ad- 
herence to  this  principle,  because  the  corporation  itself  must 
struggle  for  existence  and  establish  its  moral  character,  but  in 
the  case  of  the  great  monopoly  the  evil  may  become  unendur- 
able. 

Specialization  implies  interdependence  as  its  inseparable 
concomitant.  Where  all  the  food  is  raised  by  one  part  of  the 
people,  all  the  clothing  made  by  another  part,  fuel  provided  by 
another,  and  transportation  by  still  another,  while  yet  others 
minister  to  special  wants  in  endless  detail,  it  is  folly  for  any- 
one to  regard  himself  as  independent  of  his  fellows.  There 
is  not  merely  the  moral  bond  of  common  brotherhood  but  also 
the  material  bond  of  common  interest.  Not  only  is  there 
separation  into  so  many  diverse  lines  of  industry,  but  in  each 
of  them  there  are  many  distinct  parts  requiring  special  train- 
ing, which  only  those  so  trained  can  fill,  and  the  common  pur- 
pose of  all  can  only  be  accomplished  by  the  cooperation  of 
many,  neither  of  whom  could  well  perform  the  task  of  the 
other.  Each  wheel  in  the  great  human  machine  must  revolve 
in  its  place  and  each  cog  must  fit  in  its  slot.  In  such  a  state 
of  society  some  of  the  liberty  of  the  individual  must  give 
way  to  the  common  needs.  While  modern  combinations  re- 
sult in  subordination  and  in  some  instances  in  oppression  ap- 
proximating slavery,  and  pride,  arrogance,  wastefulness  and 
ostentation  exceeding  that  of  many  petty  despots,  neither  of 
these  evils  is  a  necessary  incident  of  concert  of  action  and  in- 
terdependence of  men.     They  are  mainly  due  to  a  disregard 


INTRODUCTION  55 

of  the  moral  law  by  those  who  rule  the  business.  The  law- 
makers are  confronted  with  the  task  of  eliminating  these  evils 
and  enforcing-  the  observance  of  the  moral  law  in  the  appor- 
tionment of  the  burdens  and  benefits  of  common  undertakings. 
Civilization  is  measured  far  more  by  the  sum  total  of  com- 
bined effort  and  interdependence  than  by  the  achievements  of 
individuals  acting  separately.  As  it  advances  changes  in  the 
forms  of  association  and  in  the  activities  of  the  combinations 
must  take  place.  Militarism  and  all  its  wasteful  and  destruc- 
tive activities  is  being  and  must  continue  to  be  sloughed  off 
and  conserving  and  productive  ones  substituted.  Legislation 
with  reference  to  all  such  combinations  must  of  necessity 
change  with  changing  conditions.  Finality  in  the  form  and 
use  of  expedients  to  accomplish  legislative  or  business  pur- 
poses is  neither  attainable  nor  desirable.  It  is  idle  to  put 
forth  any  formula  of  words  as  a  sure  guide  for  future  con- 
ditions. Ethical  principles  have  permanence  and  should  be 
inviolable;  expedients  are  changeable  and  should  have  liberty. 
The  beautiful  ideal  of  a  state  of  "liberty,  equality  and  fra- 
ternity" is  not  to  be  abandoned  as  utterly  worthless  because 
of  human  imperfections  or  the  savagery  of  men  who  have 
uttered  the  words  without  comprehension  of  their  meaning, 
but  the  obstacles  they  interpose  to  its  approximation  are  to  be 
removed,  surmounted  or  avoided  by  men  to  whom  it  is  a 
guiding  light  through  mazes  of  difficulty.  New  and  yet  un- 
tried expedients  will  continue  in  the  future  as  they  have  been 
in  the  past  to  be  shorter  paths  to  richer  fields.  No  one  man 
will  suggest  all  of  them.  The  combined  judgment  of  many 
will  continue  to  be  a  safer  guide  in  most  cases  than  the 
separate  views  of  any  one. 

Judicial  Functions 

The  function  of  the  judiciary  is  to  apply  the  existing  law 
to  specific  cases  brought  to  the  attention  of  the  court  or 
judicial  officer  in  the  prescribed  manner.  In  every  well  or- 
dered state  the  rule  enforced  is  assumed  to  be  a  pre-existing 
one.  In  disposing  of  a  case  of  controverted  right  it  devolves 
on  the  court  to,   first,  determine  the  basis  of   fact  on  which 


S6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  controversy  arises;  second,  ascertain  what  principles  of 
substantive  law  apply  to  the  question  presented  by  the  facts, 
and  third,  render  such  judgment  as  the  law  applied  to  the 
facts  requires.  There  is  very  great  diversity  of  methods  of 
doing  this,  ranging  all  the  way  from  a  summary  hearing  of 
the  parties  before  a  single  judge,  followed  by  an  immediate 
judgment,  to  the  elaborate  system  of  procedure  with  its  long 
list  of  technical  rules  of  pleading  and  procedure  and  its  suc- 
cessive retrials  and  appeals.  Equal  diversity  has  obtained  in 
the  constitution  of  courts  and  in  the  treatment  of  parties  and 
witnesses.  Summary  methods  prevail  under  despotisms  with 
much  disregard  of  law,  and  the  extreme  of  prolixity  and  delay, 
amounting  to  substantial  incapacity  to  make  final  disposition 
of  a  complicated  case,  is  not  uncommon  in  a  great  republic. 

The  law-making  power  establishes  the  courts,  fixes  their 
respective  jurisdictions  and  provides  how  they  shall  be  con- 
stituted. In  a  simple  despotism  the  king  is  the  final  judge  of 
all  controversies  and  may  exercise  his  powers  in  person  or 
through  whomsoever  he  pleases  to  designate.  The  first  great 
stride  toward  liberty  is  the  establishment  of  a  court  that  is 
independent  of  the  king,  yet  bound  by  the  law.  A  full  re- 
view of  the  composition  of  the  diverse  courts  that  have  been 
established  in  the  various  countries  at  different  times  would 
be  out  of  place  here,  but  many  of  them  will  be  found  in  the 
succeeding  chapters.  In  English-speaking  countries  as  well 
as  many  on  the  European  continent  courts  of  first  instance, 
with  power  to  determine  all  questions  of  fact  and  of  law  and 
render  final  judgment  thereon,  are  made  up  of  one  or  more 
judges,  having  or  supposed  to  have  expert  knowledge  of  the 
law,  and  a  jury  of  laymen,  usually  twelve  in  number.  The 
parties  are  ordinarily  bound  to  accept  the  situation  and  go  to 
trial  before  the  judge  assigned  to  hold  the  court,  but  chal- 
lenges to  the  jurors  are  allowed  both  with  and  without  the 
assignment  of  cause  therefor.  In  criminal  cases  the  selection 
of  a  jury  often  causes  long  delay  and  great  expense,  with  a 
net  result  of  great  inconvenience  and  little,  if  any,  good.  The 
aim  is  to  eliminate  personal  bias  and  prejudice,  which  is  of 
course   eminently    desirable,    but   the   means   allowed    is    ab- 


INTRODUCTION  ,  57 

surdly  disproportioncd  to  the  evil  it  provides  against.  Sub- 
stantially all  cases  in  all  courts  are  conducted  by  lawyers  who 
are  employed  and  paid  by  the  respective  parties.  Each  of 
them  must  have  passed  the  prescribed  examination  into  his 
legal  learning  and  made  the  requisite  proof  of  moral  char- 
acter. In  the  trial  of  a  case  he  is  the  champion  of  his  client, 
and  his  standing  and  income  are  dependent  on  success  in  win- 
ning cases  for  those  who  employ  him.  Only  in  prosecutions 
for  public  offenses  and  cases  to  which  the  state  or  some  po- 
litical subdivision  of  it  is  a  party  is  an  attorney  present  to 
represent  the  public.  Every  step  taken  in  a  cause  is  under  the 
direction  of  a  lawyer  acting  either  as  an  advocate  or  judge, 
for  the  judges  are  all  lawyers.  While  the  parties  ordinarily 
have  the  right  to  conduct  their  own  cases,  they  seldom  do  so 
if  the  matter  is  of  much  importance.  In  general  all  questions 
of  fact  are  finally  determined  in  the  court  of  first  instance 
having  general  jurisdiction,  or  some  inferior  court.  The  ap- 
pellate courts  are  generally  made  up  of  several  judges,  and 
rarely  have  the  attendance  of  a  jury.  In  these  courts  ques- 
tions of  law  only  are  ordinarily  determined.  Litigants  are 
by  no  means  sure  of  a  final  disposition  of  their  case  after  the 
decision  of  the  court  of  first  instance  has  been  reviewed  by 
the  highest  tribunal  to  which  it  can  be  carried,  for  in  very 
many  of  them  a  new  trial  in  the  court  of  first  instance  is  or- 
dered, and  the  case  is  again  at  the  starting  point  with  nothing 
settled  but  some  proposition  of  law  or  procedure.  The  whole 
system  of  courts  is  required  for  the  discharge  of  the  full 
judicial  functions  of  the  state,  but  the  courts  of  first  instance 
make  final  disposition  of  a  great  majority  of  all  the  causes. 
The  courts  of  last  resort  are  only  called  on  to  decide  certain 
exceptional  classes  of  cases  of  which  they  are  given  original 
jurisdiction  and  such  as  are  appealed  from  the  lower  courts. 
In  some  cases  successive  appeals  from  court  to  court  are  al- 
lowed, so  that  under  certain  conditions  a  case  may  be  heard 
successively  in  four  or  five  different  grades  of  court. 

It  is  a  fundamental  principle  of  jurisprudence  that  courts 
do  not  take  notice  of  any  controversy  till  it  is  presented  in  the 
prescribed  manner  by  a  complaining  party.     In  all  but  a  few 


58  EVOLUTION  OF  GOVERNMENTS  /VND  LAWS 

exceptional  cases  no  action  can  be  taken  until  notice  has  been 
given  to  the  adverse  party  in  the  manner  provided  by  law. 
It  is  a  fundamental  principle  of  justice  as  well  as  of  law  that 
all  parties  interested  in  any  matter  to  be  determined  shall  have 
fair  notice  of  the  claim  made  against  them,  of  the  time  and 
place  of  every  hearing  in  the  case,  reasonal)le  time  and  op- 
portunity to  attend,  procure  and  produce  evidence  and  present 
their  versions  of  the  facts,  the  questions  involved  and  the 
law  applical)le  thereto.  These  requirements  furnish  substan- 
tially all  the  basis  there  is  for  codes  and  rules  of  procedure. 
The  primitive  method  is  for  the  complaining  party  to  summon 
his  adversary  to  go  with  him  before  the  judge,  to  there  state 
his  grievance  and  ask  for  redress,  and  for  the  defendant  to 
then  make  his  answer,  and  the  judge  to  decide  the  matter 
after  hearing  the  statements  of  witnesses  or  not,  as  appears 
necessary.  There  are  no  written  pleadings,  no  rules  of  pro- 
cedure, no  lawyers,  little  if  any  delay  of  the  hearing  and  an 
immediate  consideration  and  decision  of  the  controversy,  so 
that  all  concerned  may  act  accordingly  and  go  on  with  their 
business.  This  in  substance  was  the  procedure  in  the  early 
days  of  Rome  where  the  case  was  tried  in  the  morning  and 
decision  required  before  sundown.  It  was  adapted  to  a  simple 
state  of  society.  Much  of  the  formalism  and  prolixity  of 
modern  court  procedure  is  due  to  the  complex  nature  of  mod- 
ern business  and  modern  theories  and  rules  of  rights  to  prop- 
erty. In  a  case  affecting  many  widely  scattered  parties  it  is 
not  possible  to  take  all  of  them  by  the  arm  and  lead  them 
before  the  judge,  nor  would  it  be  practicable  to  make  an 
oral  statement  covering  all  the  claims  made  against  each  of 
them.  It  is  necessary  to  write  it  down,  so  that  it  will  be 
definite  and  all  may  know  just  what  the  complaint  is.  The 
answer  of  a  defendant  may  be  equally  full  of  details,  and  it  is 
therefore  equally  necessary  that  it  be  written.  This  shows  the 
need  of  written  statements  of  claims,  but  it  does  not  show  any 
necessity  for  a  long  jargon  of  set  phrases  to  express  an  idea 
which  might  be  more  clearly  understood  if  written  in  a  few 
common  words,  nor  for  senseless  repetitions  on  a  theory  that 
each  of  a  number  of  causes  of  action  must  be  fully,  technically 


INTRODUCTION  59 

and  separately  set  forth.  The  technical  accuracy  of  statement 
so  strenuously  demanded  by  most  American  lawyers  is  pal- 
pably absurd.  All  that  serves  any  real  purpose  in  the  state- 
ment is  the  language  that  notifies  the  adverse  party  of  the 
claim  made.  All  elaboration  beyond  this  is  surplusage,  and 
all  mere  jargon,  such  as  is  used  to  embellish  bills  in  equity,  is 
worse  than  useless.  In  England,  where  this  extreme  techni- 
cality in  pleadings  originated,  a  sensible  system  now  prevails, 
and  the  rules  governing  equity  cases  in  the  federal  courts  of 
the  United  States  have  just  been  greatly  simplified  and  im- 
proved but  in  many  of  the  states  the  ancient  forms  are  still 
observed. 

When  a  case  is  before  a  court  with  all  parties  duly  notified 
of  its  pendency  and  fair  statements  made  of  the  claims  and 
defenses  of  all  parties  it  would  seem  natural  that  the  regula- 
tion of  the  details  of  the  investigation  into  the  facts  and  the 
application  of  the  law  should  be  left  to  the  court  and  adapted 
to  the  situation  presented.  Instead  of  doing  so  in  America 
there  are  elaborate  codes  of  procedure  restricting  the  joinder 
of  causes  of  action  and  of  parties,  the  defenses  and  counter- 
claims of  the  defendants  and  the  manner  of  conducting  the 
investigation.  Numerous  positive  rules  are  declared  govern- 
ing the  successive  steps  in  the  progress  of  the  case  and  its 
incidents  and  ancillary  remedies.  These  rules  are  treated  by 
the  courts  as  of  the  same  binding  force  as  statutes  of  sub- 
stantive law,  not  only  in  the  trial  courts  but  in  the  reviewing 
courts  as  well.  This  often  results  in  the  decision  of  cases  on 
mere  lawyers'  questions,  having  no  connection  with  the  real 
controversy  between  the  parties,  but  which  have  been  injected 
into  the  case  by  the  lawyers  in  their  efforts  to  gain  advantage 
from  the  rules  of  procedure.  The  theory  on  which  these  rules 
are  established  is  that  they  tend  to  a  proper  trial  and  a  cor- 
rect decision.  The  fallacy  lies  in  the  assumption  that  the 
rules  of  procedure  are  so  plain  and  easily  followed  that  they 
will  be  helpful  in  the  investigation.  A  few  simple  rules  regu- 
lating the  essential  steps  in  the  progress  of  the  case  are  so, 
but  a  multiplicity  of  complex  requirements  is  a  snare  which 
it  is  difficult  to  avoid.     There  is  the  same  likelihood  of  differ- 


6o  EVOLUTION  OF  GOVERNMENTS  A'ND  LAWS 

cut  interpretations  of  rules  of  procedure  as  of  rules  of  sub- 
stantive law,  and  every  unnecessary  positive  requirement  is 
sure  to  result  in  needless  annoyance,  delay,  expense  and  in- 
justice. It  is  not  possible  to  compel  right  decisions  by  mere 
rules  of  procedure,  but  it  is  possible  to  compel  wrong  ones, 
and  this  is  in  fact  done  in  an  appreciable  part  of  the  cases 
tried  in  the  courts  of  the  United  States. 

A  case  being  at  issue  on  a  disputed  question  of  fact  how 
shall  the  truth  be  ascertained?  In  cases  tried  by  a  jury  the 
rule  is  that  the  jury  answers  to  the  facts  and  the  court  to  the 
law,  and  in  other  cases  the  facts  are  determined  either  by  the 
judge  or  a  referee  appointed  by  him.  Methods  of  inquiry 
have  been  as  varied  as  the  human  mind  can  conceive.  Some 
are  based  on  a  superstitious  belief  in  divine  interposition  to 
protect  the  innocent  and  punish  the  guilty.  Such  were  the 
ancient  English  trials  by  ordeal.  There  was  the  fire  ordeal 
performed  by  a  person  accused  of  crime  by  taking  in  his  hand 
a  piece  of  red  hot  iron,  or  by  walking  barefoot  and  blindfold 
over  nine  red-hot  plowshares  laid  lengthwise  at  equal  dis- 
tances. If  he  escaped  unhurt  he  was  adjudged  innocent;  if 
hurt  guilty.  The  water  ordeal  was  performed  by  plunging 
the  bare  arm  up  to  the  elbow  in  boiling  water,  or  by  throwing 
the  accused  into  the  water.  If  he  was  burned  in  the  hot 
water  or  floated  on  the  water  he  was  guilty.  There  was  also 
the  ordeal  of  the  scorned,  trial  by  wager  of  battle  and  by  the 
defendant  waging  his  law,  which  he  did  by  swearing  to  his 
defense  and  having  his  neighbors  swear  that  they  believed  he 
told  the  truth.  Similar  superstitious  tests  of  truth  have  been 
resorted  to  by  many  primitive  people.  In  all  well  organized 
states  both  ancient  and  modern  the  usual  method  of  ascer- 
taining the  facts  has  been  by  taking  the  statements  of  wit- 
nesses. There  is  very  great  diversity,  however,  in  the 
methods  of  taking  the  testimony,  varying  all  the  way  from 
extracting  it  by  torture  on  the  rack  under  the  Holy  Inquisition, 
or  with  the  bamboo  in  China,  to  the  mere  statement  of  the 
witness,  uninfluenced  by  any  other  consideration  than  regard 
for  the  truth.  In  most  countries  a  religious  oath  or  admoni- 
tion of  the  penalties  of  perjury  is  imposed  before  taking  the 


INTRODUCTION  6i 

testimony.  There  is  no  country  in  which  all  the  people  have 
yet  attained  sufficient  moral  strength  to  entirely  eliminate  the 
danger  of  intentional  falsehood.  Moral  delinquency  of  this 
kind  varies  all  the  way  from  the  deliberate  misstatement  of 
a  matter  of  fact  to  the  mere  failure  to  mention  a  minor  cir- 
cumstance having  some  bearing  on  the  issue  as  to  which  no 
pointed  question  compels  a  definite  answer.  Nevertheless 
an  overwhelming  majority  of  all  the  people  of  European 
stock  are  truth  tellers  by  nature  and  habit,  and  in  all  the 
ordinary  affairs  of  life  in  or  out  of  court  and  with  or  without 
an  oath  their  statements  can  be  relied  on  whenever  they  are 
called  on  for  information.  A  far  more  common  and  serious 
obstacle  in  the  way  of  determining  the  facts  is  the  unreliabil- 
ity of  the  testimony  of  witnesses  due  to  inaccuracy  of  observa- 
tion and  expression  and  defects  of  memory.  These  cause 
witnesses  to  the  same  occurrence  to  give  very  different  ac- 
counts of  it.  Every  infirmity  in  the  organs  of  sense,  in  mental 
processes  and  in  knowledge  of  language  and  power  of  ex- 
pression of  the  witness  is  liable  to  leave  its  mark  on  his  state- 
ments. Passing  from  the  infirmities  of  witnesses  to  those  of 
jurors  and  judges  we  find  that  the  testimony  does  not  pro- 
duce the  same  impression  on  all  of  them,  and  that  different 
ones  reason  to  different  conclusions  from  the  same  premises. 
Where  witnesses  contradict  each  other,  one  juror  will  believe 
one  and  another  the  other.  The  statement  of  one  may  be 
absolutely  true,  yet  made  with  hesitation,  as  if  in  doubt, 
while  the  contradicting  statement  of  the  opposing  witness  may 
be  given  promptly  and  positively.  By  what  token  can  the 
juror  recognize  the  truth  and  detect  the  falsehood? 

These  multifarious  difficulties  in  arriving  at  the  truth  in 
judicial  investigations  have  induced  the  law-makers  and  courts 
to  adopt  an  elaborate  system  of  rules  of  evidence.  Some  of 
these  absolutelv  exclude  witnesses  bearing  certain  relations  to 
the  case  or  to  the  parties  to  it  from  testifying  at  all,  or  limit 
their  testimony  to  certain  exceptional  matters.  Others  re- 
quire proof  of  certain  facts  to  be  made  by  a  prescribed 
number  of  witnesses,  or  by  a  certain  kind  of  evidence,  as  a 
written  document  executed  in  a  i)rcscribcd  manner,  a  record 


62  EVOLUTION  OF  GOVERNMENTS  A'ND  LAWS 

made  in  a  particular  office  or  a  copy  of  it  made  by  a  desig- 
nated officer  and  certified  to  with  the  required  formalities. 
Generally  the  title  to  land  must  be  established  by  deeds  in  due 
form,  but  in  many  cases  this  is  impossible  and  many  excep- 
tions and  modifications  of  the  general  rule  are  found  neces- 
sary to  prevent  the  most  palpable  injustice.  Various  contracts 
are  required  to  be  in  writing  in  order  to  be  enforced  through 
the  courts,  on  the  theory  that  frauds  will  be  perpetrated  in 
the  absence  of  the  requirement,  yet  to  prevent  frauds  result- 
ing from  the  requirement  numerous  exceptions  are  made.  In 
England  and  the  United  States  until  very  recent  times  per- 
sons charged  with  crimes  were  allowed  to  confess  guilt  and 
receive  their  punishment  without  other  proof,  but  were  not 
permitted  to  testify  at  the  trial.  Torture  to  extract  confes- 
sions of  guilt  has  been  and  still  is  a  favorite  method  of  get- 
ting evidence  in  many  places.  What  is  termed  "sweating"  is 
a  mild  form  of  torture  still  resorted  to  without  authority  of 
law  in  many  places  by  over-zealous  police  officers.  The  in- 
herent difficulties  in  obtaining  proof  of  crimes  committed  in 
secret  tempt  the  officers  to  force  the  truth  from  those  who 
know  the  facts.  The  torture  is  inflicted  before  trial  on  the 
assumption  that  the  prisoner  is  guilty  but  will  not  admit  it. 
The  law  now  regards  a  person  charged  with  crime  as  inno- 
cent until  he  confesses  or  is  convicted,  and  in  many  states  he 
is  allowed  to  testify  in  his  own  behalf.  As  civilization  and 
moral  standards  advance  more  reliance  is  placed  on  the  truth- 
fulness and  honesty  of  parties  and  witnesses  and  the  arbi- 
trary rules,  based  on  distrust  of  them,  are  abolished.  Parties 
were  formerly  excluded  from  testifying  on  the  theory  that 
their  interest  in  the  case  would  cause  them  to  lie.  Wives 
were  prohibited  from  testifying  for  their  husbands.  These 
restrictions  are  still  retained  in  some  states,  but  there  is  a 
marked  tendency  to  do  away  with  them  and  assume  that  e\cn 
those  most  interested  in  the  result  of  the  trial  will  tell  the 
truth  in  the  great  majority  of  cases.  There  has  also  been  a 
corresponding  relaxation  of  the  rules  relating  to  the  recep- 
tion of  i)rivate  account  books  and  other  private  writings  as 
evidence.     While  there  has  been  and  still  is  ample  basis  for 


INTRODUCTION  63 

distrust  in  particular  cases,  it  may  well  be  doubted  whether 
arbitrary  rules  excluding  witnesses  from  testifying  in  any 
case  tend  in  the  right  direction.  The  credibility  of  witnesses 
may  well  be  affected  by  the  considerations  which  have  caused 
their  exclusion,  but  it  is  grossly  unjust  to  assume  that  all 
people  will  resort  to  falsehood  to  further  their  own  interests 
or  that  a  majority  of  them  will  do  so.  The  natural  obstacles 
in  the  way  of  the  judicial  search  for  truth  cannot  be  removed 
by  closing  the  doors  to  any  place  where  it  may  be  found. 
Arbitrary  rules  may  prohibit  its  discovery,  but  cannot  pro- 
mote it. 

The  controversy  may  be  merely  as  to  the  facts,  or  as  to 
the  law,  or  as  to  both  facts  and  law.  Where  the  facts  only 
are  controverted  and  the  parties  are  agreed  as  to  the  law 
applicable  to  them,  the  verdict  of  the  jury  or  findings  of  fact 
by  the  court  are  followed  by  such  judgment  as  they  warrant. 
Where  the  parties  disagree  as  to  what  the  rules  of  substantive 
law  are,  or  as  to  which  of  several  acknowledged  rules  ap- 
plies to  the  facts  as  found  or  admitted,  it  is  the  province  of 
the  court  to  declare  what  the  law  is  and  which  of  its  rules 
apply  to  the  controversy.  Where  shall  the  judge  look  for  a 
clear  statement  of  the  law?  In  China  to  the  Penal  Code,  in 
India  to  the  Code  of  Manu.  in  all  Mohammedan  countries  to 
the  Koran,  in  continental  Europe  to  the  compilations  of  Ro- 
man law  made  under  Justinian  and  the  modifications  of  it 
made  by  the  law-making  ])ovver  of  the  particular  nation,  in 
England  to  the  acts  of  Parliament  and  the  reported  decisions 
of  the  courts  construing  them  or  declaring  the  rules  of  the 
common  law.  and  in  the  United  States  to  the  federal  and 
state  constitutions,  to  the  acts  of  Congress  and  of  the  state 
legislatures,  and  to  the  decisions  of  the  courts  construing 
them  and  declaring  the  common  law.  There  is  not  now  and 
never  has  been  in  any  country  a  code  of  written  laws  so 
j)lain  in  its  terms  as  to  be  self-explanatory,  or  which  provided 
rules  directly  applicable  to  every  question  presented  to  the 
courts  for  decision.  The  Koran,  which  perhaps  has  higher 
authority  among  Mohammedans  than  the  code  of  any  other 
people  has  with  them,  contains  so  few  and  meager  rules  that 


64  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  judicial  officers  are  forced  to  supplement  them  with  others 
which  they  deem  in  accord  with  the  spirit  of  the  Koran.  The 
wisdom  of  the  prophet  was  not  adequate  to  the  future  de- 
velopments of  Mohammedan  civilization.  So  it  is  with  every 
code  of  laws,  no  matter  how  wise  the  author  of  it  may  be 
or  how  great  his  authority.  Advancing  and  receding  civiliza- 
tion each  present  new  forms  of  human  relation,  activity  and 
combination,  new  fields  of  enterprise  and  new  forms  of  prop- 
erty. Old  customs  give  way  to  new  ones,  and  old  standards 
of  morality  are  superseded  by  better  ones.  Progress  means 
change  in  the  forms  and  purposes  of  human  activity,  and  the 
law,  which  is  merely  the  expression  of  legislative  will  or  es- 
tablished custom,  always  lags  behind  the  advanced  thought 
of  any  age. 

In  the  United  States  the  courts  have  to  deal  with  many 
kinds  of  law  emanating  from  different  sources,  and  to 
determine  which  has  controlling  force  in  the  case  under 
consideration.  The  constitution  of  the  United  States  is  the 
supreme  law  to  all  courts,  but  its  field  is  relatively  very  small 
and  it  affords  rules  to  solve  only  a  very  few  of  the  great 
number  of  questions  to  be  answered.  Acts  of  Congress 
passed  under  its  authority  rank  next.  The  constitution  of 
the  state  in  which  the  court  sits  is  next  in  authority.  Most 
of  the  state  constitutions  cover  more  ground  and  are  of  more 
frequent  application  than  the  Federal  Constitution.  Acts  of 
the  state  legislature  which  do  not  conflict  with  either  state  or 
national  constitution  or  a  valid  act  of  Congress  come  next  and 
cover  a  much  wider  field.  While  the  whole  volume  of  writ- 
ten law  contained  in  constitutions  and  statutes  is  much  smaller 
than  that  of  the  unwritten  common  law,  it  is  within  the 
power  of  the  state  legislatures  to  cover  as  much  or  as  little 
of  the  field  by  statutes  as  they  see  fit.  The  task  of  ascertain- 
ing what  the  written  law  is  is  often  one  of  great  difficulty,  ow- 
ing to  different  enactments  made  at  different  times,  under 
different  circumstances  and  for  different  puri)oses,  which 
overlap  and  conflict  as  to  details.  In  addition  to  the  consti- 
tutional and  statutory  law  there  are  treaties  between  nations 
having  the  effect  of  law,  and  the  unwritten  principles  of  in- 


INTRODUCTION  65 

ternational  and  admiralty  law.  Below  all  the  foregoing  there 
are  municipal  ordinances  operative  as  local  laws,  and  the  by- 
laws of  corporations  and  associations  binding  on  their  mem- 
bers. While  the  common  law  is  spoken  of  as  the  unwritten 
law,  it  is  looked  for  in  printed  books  of  reports  of  decisions  of 
the  courts  in  which  its  doctrines  are  discussed  in  endless  de- 
tail and  numberless  cases.  These  cases  are  of  various  grades 
of  authority  and  persuasive  reasoning.  Decisions  of  the  Su- 
preme Court  of  the  United  States  are  binding  on  all  courts  in 
their  construction  of  the  Constitution  of  the  United  States 
and  acts  of  Congress  passed  thereunder  and  as  to  all  matters 
within  its  special  province,  but  its  answer  to  any  question  as 
to  what  the  rules  of  the  common  law  are  have  merely  the 
persuasive  force  of  the  opinion  of  the  highest  court  in  the 
land.  Similarly  the  decisions  of  the  highest  court  of  a  state 
as  to  the  law  of  the  state,  written  or  unwritten,  is  binding  on 
all  inferior  tribunals  of  the  state.  The  leading  purpose  of 
the  people  in  providing  reviewing  courts  is  to  procure  and 
preserve  uniformity  of  construction  of  statutes  and  constitu- 
tions, and  uniform  declarations  of  the  rules  of  the  unwritten 
law.  It  sometimes  happens  that  the  Supreme  Court  changes 
its  views  as  to  the  rules  of  law  and  either  overrules  or  ignores 
its  own  prior  decision.  This  of  course  introduces  confusion 
instead  of  preserving  uniformity.  When  a  prior  decision  is 
pointedly  declared  to  have  been  a  misstatement  of  the  law  and 
distinctly  overruled  lawyers  and  inferior  courts  may  accept 
the  last  decision  with  a  fair  degree  of  assurance  that  the  rule 
last  announced  will  be  adhered  to  in  the  future,  but  when  a 
prior  decision  is  merely  ignored  without  comment  confusion 
and  uncertainty  inevitably  follow,  for  nobody  can  tell  which 
precedent  will  be  followed  in  the  next  case.  Questions  some- 
times arise  which  have  not  been  decided  l)y  the  court  of  high- 
est authority  over  the  trial  court.  Resort  is  then  had  to  the 
decisions  of  courts  of  other  states  for  guidance.  It  sometimes 
happens  that  the  court  of  one  state  resolves  the  doubt  one 
way  and  another  the  other.  Sometimes  the  courts  of  different 
states  are  about  equally  divided  in  number  on  each  side,  and 
sometimes  the  less  number  appear  t<»  be  the  best  authorities. 


66  F.VOLITTTON  OF  GOVERNMENTS  AND  LAWS 

With  all  this  iiuiltiplicity  of  sources  of  the  law  is  it  strange 
that  courts  of  first  instance,  which  have  to  deal  with  both 
the  facts  and  the  law  are  sometimes  reversed  by  the  reviewing 
courts?  If  mere  complexity  of  the  laws  is  an  index  of  civili- 
zation, the  United  States  is  a  highly  civilized  country.  The 
publication  of  reports  of  the  decisions  of  the  reviewing  courts 
goes  on  at  the  rate  of  something  like  two  hundred  volumes 
a  year,  and  the  number  steadily  increases.  That  there  are  so 
many  is  of  itself  some  proof  that  the  law  is  in  an  unsettled 
state.  The  truth  is  that  the  modern  tendencv  to  refinement 
and  nice  distinction  has  so  obscured  many  wholesome  general 
principles  that  the  rule  itself  can  no  longer  be  applied  with 
any  fair  degree  of  certainty  or  uniformity  and  is  therefore 
throvvn  aside  and  one  or  another  exception  followed.  It  is 
manifest  that  the  present  system  will  ultimately  fall  of  its 
own  weight.  Much  of  the  public  dissatisfaction  with  the 
methods  of  the  courts  and  the  delays  and  expense  of  litigation 
is  chargeable,  to  the  impossibility  of  a  full  consideration  of  the 
law  in  the  trial  courts.  The  trial  judge  can  make  only  a 
cursory  examination  of  authorities  bearing  on  a  nicely  bal- 
anced question,  while  the  reviewing  court  proceeds  with  great 
deliberation,  and  feels  called  on  to  state  and  apply  the  law 
with  the  utmost  accuracy.  Notwithstanding  the  vast  accumu- 
lation of  recorded  precedents,  new  inventions,  new  combina- 
tions and  new  forms  of  contracts  are  presenting  new  questions 
to  the  courts.  Though  broad  general  principles  may  apply, 
the  habit  of  seeking  for  identical  precedents  has  become  so 
fixed  that  courts  hesitate  to  apply  broad  principles  without  the 
support  of  precedents  of  like  cases.  This  extreme  nicety  leads 
rather  to  confusion  than  to  certainty.  Ordinarily  the  gen- 
eral principles  are  better  guides  and  more  easily  followed  than 
the  similar  precedents.  In  theory  there  is  and  always  has 
been  a  rule  of  law  applicable  to  and  decisive  of  every  contro- 
versy, else  cases  might  arise  which  could  not  be  determined. 
The  judge  must  find  a  rule,  whether  it  has  ever  been  an- 
nounced or  not.  This  is  true  in  all  countries  and  at  all  times. 
If  everv  disagreement  were  submitted  to  the  courts  under 
the  existing  elaborate  system  they  would  be  overwhelmed  with 


INTRODUCTION  67 

such  a  mass  of  litigation  that  it  would  be  utterly  impossible 
to  dispose  of  it.  As  it  is  the  judicial  mills  are  so  full  in  many 
places  that  long  delays  amounting  to  a  substantial  denial  of 
justice  are  inevitable.  Fortunately  the  people  themselves  ad- 
just most  of  their  differences  without  resort  to  the  courts. 
Business  is  so  conducted  that  but  a  very  small  part  of  the 
numberless  transactions  of  commerce  and  employment  give 
rise  to  any  dispute.  The  parties  to  them  frequently  agree  on 
terms  and  adjustments  of  their  affairs  quite  different  from 
what  the  law  would  impose.  The  moral  law,  views  of  justice 
and  fairness  often  induce  one  to  give  more  than  the  law  re- 
quires or  the  other  party  asks,  or  to  accept  less  than  such 
amount.  As  moral  standards  advance  and  altruistic  impulses 
increase  necessity  for  the  exercise  of  judicial  functions  di- 
minishes. 

While  the  courts  could  do  much  to  overcome  the  difficulties 
above  outlined  by  improvement  of  their  own  methods,  com- 
prehensive reforms  can  only  be  effected  by  the  legislative 
power.  Many  branches  of  the  law  admit  of  world  wide  uni- 
formity, while  others  are  of  necessity  local.  The  law  of  the 
high  seas,  which  no  nation  owns,  must  be  common  to  the  navi- 
gators of  all  nations.  The  rules  of  commerce  are  susceptible 
of  substantial  uniformity,  and  the  law  of  personal  relations, 
though  so  long  and  grossly  unjust,  ought  to  be  uniformly 
just  throughout  the  world.  Slavery  has  already  met  the  con- 
demnation of  all  civilized  people,  and  all  other  forms  of  op- 
pressive personal  relations  must  give  way  to  moral  progress. 
Titles  to  land  and  rights  of  occupancy  of  it  must  of  necessity 
be  dependent  in  some  measure  on  local  conditions  of  soil, 
climate,  market  and  pressure  of  population.  The  purposes, 
f(jrms  and  extent  of  industrial  and  commercial  combinations 
will  always  depend  in  some  degree  on  such  conditions  and 
also  on  the  hal)its,  capacity  and  character  of  the  population. 
There  are  already  beginnings  of  a  common  law  of  the  world, 
the  principles  of  which  are  recognized  by  all  civilized  nations. 
With  an  advancing  recognition  of  moral  standards  it  becomes 
apparent  that  the  relations  of  nations  however  distant  and  dis- 
similar  should   be   regulated    b\'    law.    and    also    that    the    law 


68  EVOLUTION  OF  GOVGRNMENTS  A)ND  LAWS 

should  be  just.  World  wide  reforms  having  the  effect  of 
amendments  of  the  law  of  nations  are  being-  made  through  the 
instrumentality  of  conferences  at  the  Hague  and  elsewhere  of 
representatives  of  the  nations,  by  treaties  between  different 
powers,  and  yet  more  by  the  dissemination  of  the  principles 
of  morality.  Legislative  bodies  in  all  parts  of  the  earth  now 
take  some  notice  of  the  laws  of  distant  nations  and  shape 
their  own  acts  with  some  reference  to  the  light  they  get  from 
abroad.  The  most  marked  evil  tendency  resulting  from  the 
imitation  of  foreign  examples  is  in  the  drift  of  the  peaceful 
nations  of  the  east  toward  the  vicious  militarism  of  the  west, 
but  it  seems  reasonably  certain  that  this  evil  will  correct  itself 
in  the  near  future,  and  that  the  universal  law  will  be  a  steady 
approximation  toward  the  moral  law. 

The  evil  of  an  unwieldy  body  of  precedents,  similar  to  that 
with  which  we  are  afflicted  in  the  United  States,  existed  in  the 
Roman  Empire  in  the  time  of  Justinian,  and  was  then  met  by 
a  general  codification.  This  remedy  could  be  applied  with 
comparative  ease  under  an  autocrat,  but  with  legislative 
powers  apportioned  between  Congress  and  forty-eight  state 
legislatures  the  practical  difficulties  appear  almost  insurmount- 
able. A  start  toward  uniformity  throughout  the  states  has 
been  made  through  the  influence  of  the  American  Bar  As- 
sociation and  the  Commissioners  on  Uniform  State  Laws,  but 
anything  approximating  a  general  codification  of  the  whole 
body  of  the  law  throughout  the  Union  is  not  yet  even  fore- 
shadowed. Manifestly  the  widest  practicable  uniformity  is 
eminently  desirable.  The  obstacles  to  intercourse  between 
residents  of  different  parts  of  the  country  interposed  by  time 
and  distance  have  been  largely  eliminated  by  modern  inven- 
tions. The  obstacles  interposed  by  diverse  laws  can  be  elimi- 
nated by  uniformity.  The  process  by  which  this  may  be 
promoted  is  foreshadowed  by  the  start  already  made  by  the 
Commissioners,  taking  one  topic  at  a  time  and  devoting  ample 
time  to  it.  More  rapid  progress  might  be  made  if  the  Com- 
missioners had  more  general  recognition  throughout  the  states 
and  sufficient  financial  support  to  enable  them  to  devote  the 
necessary  time  to  the  work.     In  a  period  of  invention  and 


INTRODUCTION  6g 

rapid  changes  of  social,  industrial  and  commercial  combina- 
tions, a  rigid  code,  purporting  to  cover  the  whole  field  of  the 
law  for  the  future,  is  neither  practicable  nor  desirable,  but  it 
is  possible  and  eminently  desirable  to  codify  those  branches 
that  admit  of  complete  uniformity,  like  commercial  law,  and 
that  wherever  moral  principles  are  involved  in  the  law  on  any 
subject  the  closest  possible  approximation  to  the  just  rule 
should  be  adopted  and  given  the  most  ample  application. 

The  states  acting  separately  may  make  substantial  progress 
in  simplifying  the  laws  of  local  application  by  codification  by 
topic  of  these  subjects.  Of  course  all  uniform  state  laws, 
however  formulated,  would  only  become  effective  on  their 
adoption  by  the  state  legislature  and  would  appear  in  the 
statute  books  merely  as  laws  of  the  state.  The  value  of  a 
codification  would  be  dependent  in  some  measure  on  the  de- 
gree of  permanence  attaching  to  the  rules  contained  in  it,  but 
it  has  the  advantage  of  classification  and  orderly  arrange- 
ment, and  tends  to  clearness  in  case  of  subsequent  amend- 
ments. These  are  matters  of  great  importance  in  simplifying 
the  labors  of  the  judge.  When  the  rules  of  substantive  law 
are  scattered  through  numberless  volumes  under  all  sorts  of 
classification  and  headings,  he  can  never  know  that  his  in- 
vestigation has  quite  covered  the  whole  subject.  With  a  com- 
plete codification  of  any  topic  he  might  feel  a  fair  degree  of 
assurance  that  he  had  all  the  law  he  required  before  him. 
After  the  best  possible  codification  of  existing  law  has  been 
made  there  will  still  remain  the  experimental  field  of  new 
subjects  and  radical  changes  of  old  ones,  of  new  public  enter- 
prises and  new  private  schemes  requiring  regulation. 

All  questions  of  fact  and  of  law  which  are  determined  by 
the  judges  are  resolved  by  the  opinion  of  the  majority  of 
them,  but  in  most  states  the  determination  of  a  question  of 
fact  by  a  jury  of  twelve  requires  the  concurrence  of  all.  This 
is  most  illogical  and  productive  of  great  expense,  inconven- 
ience and  delay  in  a  considerable  part  of  the  difficult  cases. 
In  criminal  cases  subjecting  a  defendant  to  vindictive  punish- 
ment it  is  merciful  to  require  unanimity,  but  in  civil  cases  the 
concurrence  of  three-fourths  is  ample,  and  it  would  be  equally 


^o  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

safe  in  criminal  cases  prosecuted  with  a  view  to  the  welfare  of 
the  defendant  as  well  as  the  public. 

In  many  states  new  trials  of  all  the  issues  are  granted  for 
reasons  affecting  only  one  or  more  of  them.  Where  this  is 
done  the  first  trial  goes  for  nothing,  when  logically  it  should 
settle  all  issues  as  to  which  there  has  been  a  fair  and  full  trial 
and  clear  finding. 

Successive  appeals  ought  not  to  be  allowed  in  any  case. 
The  evil  consequences  of  them  far  outweigh  the  general 
benefit. 

Questions  as  to  the  constitutionality  of  statutes  ought  to  be 
settled  in  advance  of  the  private  litigation  under  them,  and  in 
a  proceeding  in  which  the  public  is  represented.  It  causes 
contempt  of  the  legislative  authority  to  require  private  citi- 
zens to  determine  for  themselves  when  an  act  of  Congress  or 
a  state  legislature  is  valid,  and,  having  acted  in  the  belief  that 
it  is  valid,  to  be  called  on  to  defend  it  through  a  series  of 
courts  and  suffer  loss  at  the  end  because  the  court  of  last 
resort  holds  it  invalid. 

The  new  constitution  of  I'oland  prohibits  the  courts  from 
inquiring  into  the  validity  of  a  duly  promulgated  statute,  and 
the  constitution  of  Czecho-Slovakia  provides  for  a  constitu- 
tional court  to  pass  on  the  validity  of  statutes. 

Executive  Functions 

In  the  evolution  of  government  from  chaotic  liberty  the 
first  function  to  l)e  developed  is  the  executive.  It  is  usually  ex- 
ercised in  leading  war  parties,  hunting  or  fishing  expeditions, 
and  in  such  manner  as  accords  with  the  character,  customs  and 
purposes  of  the  tribe.  Combined  with  it  are  such  crude  be- 
ginnings of  legislative  and  judicial  functions  as  the  situation 
requires,  all  assumed  ordinarily  by  a  single  leader.  The  next 
function  taking  separate  form  is  the  legislative,  usually  ex- 
ercised by  a  general  council  of  the  tribe  or  the  elders  or  heads 
of  families  in  it.  Representative  legislative  bodies  chosen  by 
the  people  are  a  very  late  develoj)ment  of  advanced  civiliza- 
tion. Judicial  functions  are  exercised  by  the  king  in  person 
in  a  small  despotism,  and  in  larger  ones  by  persons  appointed 


INTRODUCTION  71 

by  him  to  act  in  his  stead.  The  Greeks  and  Romans  give  us 
the  earhest  known  well  defined  division  of  powers  among  the 
tiiree  departments  of  government.  This  division  now  obtains 
throughout  Europe  as  well  as  America,  and  is  being  extended 
into  Asia.  The  separation  of  executive,  legislative  and  ju- 
dicial functions  is  nowhere  complete.  In  most  monarchical 
countries  the  chief  executive  officers  under  the  crown  take  the 
mitiative  in  the  most  important  legislation  and  have  a  voice 
in  the  deliberations  of  the  Parliament,  and  all  laws  require 
the  approval  of  the  king.  In  Great  Britain  the  ministry  exer- 
cise the  executive  functions  with  no  substantial  interference 
from  the  king.  They  are  always  in  accord  with  the  majority 
in  Parliament,  for  whenever  they  cease  to  be  so  a  new  cabinet 
is  formed  and  the  House  of  Commons  is  usually  dissolved 
and  new  members  elected.  In  all  countries,  where  there  is  a 
separation  of  executive  and  legislative  powers,  it  is  necessary 
that  the  executive  departments  report  to  the  legislative  the 
needs  of  the  public  service  and  submit  estimates  of  the  moneys 
required  for  each  and  the  requirements  of  men  for  military, 
naval  and  civil  service. 

In  the  United  States  the  president  and  the  governors  of  the 
states  make  recommendations  respectively  to  Congress  and  to 
the  legislatures  through  written  messages,  but  are  not  allowed 
to  take  any  part  in  their  deliberations ;  nor  are  any  other  ex- 
ecutive officers  entitled  to  do  so.  The  President  has  a  veto 
on  acts  of  Congress,  but  this  may  be  overriden  by  a  vote  of 
two-thirds  of  each  house  and  the  law  enacted  without  his  sanc- 
tion. Similar  rules  apply  to  the  governors  and  state  legisla- 
tures. The  influence  of  the  chief  executive  under  the  system 
of  political  parties  which  has  prevailed  from  early  times  de- 
pends on  whether  his  party  is  in  the  majoritv  in  the  two  houses 
of  Congress,  or  the  legislature  of  his  state.  When  the  ex- 
ecutive is  in  political  accord  with  the  majority  in  both  houses 
his  influence  is  usually  very  jxttcnt  in  shaping  legislation;  when 
he  is  not  his  influence  over  api)roj)riati()ns  of  money  may  still 
be  great  through  estimates  of  the  public  needs,  but  as  to  other 
matters  of  legislation  it  may  be  very  small.  In  this  particular 
the  system  is  lacking  in  efliciency  and  ultra  conservative. 


12,  EVOLUTION  OF  GOVIERNMENTS  AND  LAWS 

While  judicial  power  has  been  taken  away  from  chief  ex- 
ecutives in  all  civilized  nations,  the  appointment  of  the  judges 
is  still  a  function  of  the  chief  executive  in  Europe,  and  for 
the  federal  courts  in  the  United  States  and  the  state  courts 
of  some  of  the  states.  In  others  they  are  chosen  by  the  legis- 
lature, but  in  most  of  the  states  they  are  now  elected  by  the 
people.  The  judicial  function  of  trying  impeachments  of 
presidents  and  other  civil  officers  of  the  United  States,  includ- 
ing judges  of  the  federal  courts,  is  vested  in  the  senate  of 
the  United  States,  and  of  the  governors  and  other  state  offi- 
cers in  the  state  senates.  Impeachment  by  charges  preferred 
by  the  lower  legislative  body  and  tried  by  the  upper  is  not  an 
efficient  method  of  punishing  public  officers  for  misfeasance 
m  office.  It  may  be  wise  to  have  so  conservative  a  remedy  in 
the  case  of  the  president  and  vice-president,  but  as  to  all  other 
officers  it  is  an  impracticable  scheme. 

The  executive  head  of  every  country,  by  whatever  name  he 
may  be  called,  is  always  commander  in  chief  of  the  army  and 
navy  and  the  representative  of  the  nation  in  all  dealings  with 
foreign  nations.  All  civil  as  well  as  military  officers,  except 
such  as  are  made  elective  by  the  legislature  or  by  popular  vote, 
are  also  appointed  by  the  chief  executive.  While  the  law- 
making power  levies  the  taxes  and  gives  general  directions 
for  its  appropriation,  it  is  the  executive  officers  who  collect 
the  money  and  use  it.  By  reason  of  its  control  of  appoint- 
ments to  office,  of  the  expenditure  of  public  funds  and  its 
daily  contact  with  the  people  in  the  transaction  of  the  public 
business,  the  executive  de]>artment  exerts  a  powerful  influence 
both  on  the  legislative  department  and  public  sentiment. 
Theoretically  in  the  United  States  it  is  subject  to  the  direc- 
tion of  the  legislative  and  judicial  branches  of  the  government 
acting  within  their  respective  spheres.  It  is  subject  to  the 
laws,  and  executive  officers  are  bound  to  carry  the  judgments 
of  the  courts  into  execution.  They  are  liable  to  trial  and 
punishment  by  the  courts  for  their  violations  of  law  and 
duty,  and  in  some  instances  in  some  of  the  states  to  removal 
from  office  by  them.  The  vast  executive  powers  of  the  general 
government  of   the   United   States   are   concentrated   in   the 


INTRODUCTION  73 

President.  The  heads  of  the  executive  departments  are  ap- 
pointed by  him  and  are  his  advisers,  but  they  hold  office  during 
his  pleasure  only,  and  he  has  power  to  remove  them  and  ap- 
point others  at  will.  The  states  have  a  far  less  forceful  ex- 
ecutive head.  In  most  of  them  the  chief  executive  officers  . 
other  than  the  governor  are  also  elected  by  the  people,  and 
are  not  subject  to  removal  by  him.  The  greatly  superior 
efficiency  of  the  federal  plan  has  not  yet  induced  the  states  to 
model  their  executive  departments  after  it. 

In  the  discharge  of  executive  duties  it  often  becomes  neces- 
sary to  determine  questions  of  fact  preliminary  to  the  per- 
formance of  a  duty.  This  the  executive  officer  who  is  called 
on  to  act  does  summarily  in  his  own  way,  usually  without  any 
formal  trial.  Perhaps  the  most  important  instances  occur  in 
matters  affecting  the  friendly  relations  of  the  country  with  a 
foreign  power.  The  protection  of  citizens  temporarily  in 
foreign  states  frequently  makes  it  necessary  to  inquire  into 
transactions  occurring  in  remote  parts  of  the  earth.  In 
exercising  the  pardoning  power  an  inquiry  into  the  character 
and  conduct  of  the  applicant  for  mercy  closely  analogous  to  a 
judicial  trial  of  a  question  of  fact  is  necessary,  though  the 
proceeding  is  wholly  discretionary  with  the  executive  in  most 
states  and  countries. 

The  moral  progress  of  the  world  is  exhibited  by  the  steady 
and  rapid  evolution  of  executive  departments  into  agencies 
for  the  discharge  of  useful  peaceful  functions,  and  the  ten- 
dency to  slough  oft  the  baneful  military  activities.  While  in- 
ventions of  destructive  agents  and  instruments  have  kept  pace 
with  the  inventions  of  useful  ones,  and  while  the  nations  still 
waste  their  energies,  their  substance  and  their  men  in  need- 
less and  vicious  armaments  and  war  preparations,  the  utter 
immorality  of  aggressive  wars  is  recognizefl,  and  the  exec- 
utives of  all  advanced  states  feel  the  restraining  inthiences  of 
an  advancing  morality  which  condemns  war. 

Checks  and  Balances  of  Governmental  Powers 
Much  has  been  said  by  writers  on  political  economy  in  com- 
mendation of  the  plan  of  restraining  each  branch  of  the  gov- 
ernment within   its   useful  held   by   placing  a  countervailing 


74  RVOLUTTOX  OF  HOVERNMEXTS  AND  LAWS 

power  in  another  branch,  and  there  can  be  no  doubt  of  the 
value  of  such  balances  of  power.  Nevertheless  the  ultimate 
effective  checks  must  always  remain  with  the  general  body  of 
citizens  and  he  kept  alive  by  education  and  an  active  public 
sentiment;  else  they  soon  lose  all  potency.  The  true  theory 
of  all  official  power  is  that  of  agency  to  do  particular  things, 
not  of  a  general  agency  subject  only  to  a  few  special  limi- 
tations. The  balancing  of  powers  by  constituting  different 
agencies  to  act  as  checks  on  each  other  has  been  tried  often 
and  in  a  great  varietv  of  wavs,  but  nowhere  with  ideal  results. 
The  Chinese  imperial  system,  so  far  as  all  officers  under  the 
emperor  were  concerned,  was  based  on  this  idea,  but  corrup- 
tion and  inefficiency  were  the  rule  rather  than  the  exception. 
Rome  set  tribunes  against  consuls  and  massed  plcbs  against 
patres,  yet  the  senate  continued  to  rule  till  overawed  by  the 
legions  under  military  leaders.  A  government  of  limited 
powers  exercised  for  short  periods  by  persons  taken  from  and 
leturned  to  the  general  mass  of  citizens  is  least  dangerous  to 
liberty.  The  objections  to  it  are  lack  of  continuity  of  pur- 
pose and  efficiency.  In  a  country  where  ignorance  and  im- 
morality prevail  these  objections  are  valid.  Liberty  and  order 
are  impossible  without  self-restraint  exercised  voluntarily  by 
the  great  majority  of  the  people.  Education  is  by  all  odds 
the  most  potent  factor  in  maintaining  any  governmental  sys- 
tem. This  is  more  clearly  illustrated  by  the  Asiatic  govern- 
ments than  by  the  European,  where  illiteracy  has  prevailed 
until  very  recent  times  with  the  exception  of  the  Greek  and 
Roman  periods.  A  definite  system  of  education  in  law,  re- 
ligion and  social  organization,  enforced  as  a  divine  ordinance, 
has  moulded  the  character  of  all  Hindoo  societv  for  thousands 
of  years.  The  Mohammedan  system  has  been  similarly  pro- 
pagated. The  Chinese  books  and  teachers  have  played  an 
equally  important  part  in  preserving  the  peculiar  institutions 
of  that  country  and  securing  obedience  to  much  that  appears 
to  Europeans  as  unqualifiedly  bad.  Europe  and  America  have 
also  been  greatly  influenced  by  the  teachings  of  the  Bible,  also 
of  Asiatic  origin,  which  have  been  accepted  as  religious  truth, 
but  not  as  a  guide  in  the  formation  of  governments,  or  a  sys- 


INTRODUCTION  75 

tern  of  laws  to  be  administered  in  the  courts.  In  this  it  will 
be  seen  that  the  use  of  the  Bible  as  a  sacred  book  is  somewhat 
anomalous,  for  the  Koran  and  the  Code  of  Manu  are  of  the 
highest  authority  as  books  of  law  in  all  courts  where  their 
religious  authority  is  accepted.  The  morals  of  the  Old  Testa- 
ment are  discarded  as  too  low  for  this  age.  The  Christian 
conception  of  universal  love  for  all  humanity  indicates  the 
ideal  social  condition,  without  elaborating  the  details  of  the 
application  of  it  to  the  particulars  of  human  conduct.  Love 
as  a  passion  is  not  universal,  but  partial,  responding  to  in- 
fluences not  always  readily  comprehended.  Though  capable 
of  stimulation  by  education,  its  mainspring  rests  in  the  seat  of 
the  emotions  of  the  person.  The  heart  responds  to  impulses 
that  no  one  can  wholly  control.  If  all  could  be  induced  to  act 
as  love  for  each  and  all  would  dictate,  the  destructive  and 
corrective  functions  of  government  would  be  eliminated  at 
once,  for  there  would  be  nothing  left  on  which  to  act.  Wars 
would  cease,  and  those  who  now  commit  crimes  would  be 
wholly  absorbed  in  harmless  activities,  beneficial  to  themselves 
or  to  others.  Government  in  its  sinister,  meddlesome  and 
cruel  sense  might  at  once  be  dispensed  with.  But  this  would 
not  do  away  with  the  necessity  for  social  organization.  Great 
numbers  cannot  act  in  concert  for  their  mutual  benefit  with- 
out rules  governing  the  conduct  of  each  and  an  apportionment 
of  duties.  Schools  for  the  instruction  of  all  in  the  rudiments 
of  letters,  science  and  the  arts  and  special  instruction  for 
each  to  qualify  him  for  his  particular  part  in  life  will  always 
be  necessary.  Until  the  ideal  Christian  spirit  is  universal  it 
will  continue  to  be  necessary  for  the  people  to  guard  against 
abuses  of  governmental  powers.  The  idea  of  official  checks 
balancing  each  other  is  based  on  the  theory  of  a  governmental 
force  above  the  people.  Unless  those  for  whom  powers  are 
exercised  are  capable  of  approving  or  condemning  the  acts  of 
their  agents  according  to  their  merits,  it  is  idle  to  expect  one 
set  of  officials  to  protect  the  people  effectively  against  an- 
other. It  is  quite  too  easy  for  the  two  sets,  chosen  to  watch 
each  other,  to  combine  for  their  common  advantage  against 
the  general  public.  History  is  full  of  such  cmnbinatiDns  in 
the  United  States  as  well  as  in  China. 


76  EVOLUTION  OF  GOVERiNMENTS  MND  LAWS 

General  Purposes  of  Government 

The  central  idea  of  government  is  an  organization  through 
which  the  combined  force  of  many  may  be  exerted.  The  ob- 
jects to  be  accompHshed  by  the  use  of  this  force  may  be  bene- 
ficial to  all,  to  a  few  or  to  one  alone,  and  they  may  benefit  all 
or  a  part,  but  in  unequal  degrees.  Where  the  government 
takes  the  form  of  an  unlimited  monarchy,  the  ruler  has  the 
power  to  take  for  himself  and  his  favorities  all  of  the  bene- 
fits, and  to  place  all  of  the  burdens  on  the  multitude.  The 
monarch  may  desire  the  general  welfare  of  his  subjects,  and 
may  promote  it  in  some  ways,  but  the  maintenance  of  his 
authority  is  dependent  on  suppressing  popular  impulses  in 
public  affairs.  The  average  man  magnifies  his  own  merits 
and  importance  and  minimizes  those  of  others.  He  also  sym- 
pathizes most  with  those  near  him.  So  it  inevitably  comes 
about  in  a  despotism  that  the  monarch  and  his  favorites  en- 
gross the  benefits  of  the  state's  power,  and  by  a  law  of  moral 
compensation  the  excessive  advantages  enjoyed  curse  the  favo- 
rites with  low  moral  standards  and  such  consequences  as 
naturally  result  from  them.  Where  the  form  of  the  govern- 
ment is  that  of  an  aristocracy,  the  beneficiaries  may  be  more 
numerous,  though  not  necessarily  so.  Where  they  act  in  con- 
cert the  result  is  much  the  same  as  in  the  case  of  the  despot- 
ism, but  there  are  more  heads  to  be  gratified,  and  the  rapacity 
of  each  is  liable  to  encounter  some  resistance  from  the  others. 
The  proletariat  are  still  without  power  to  enforce  their  rights. 
In  popular  governments  the  theory  is  that  powers  are  delegated 
to  public  servants,  to  be  used  for  the  benefit  of  all,  and  that 
the  benefits  and  burdens  of  government  are  impartially  dis- 
tributed. An  art,  however,  corresponding  to  that  of  the 
courtiers,  develops  in  the  republic,  and  through  specious  pre- 
texts crafty  men  employ  the  powers  of  the  state  for  their  own 
enrichment  in  different  ways,  but  with  results  similar  to  those 
of  the  courtier's  f awnings.  The  form  of  the  government  does 
not  eliminate  the  disposition  to  be  unjust,  nor  are  the  balances 
of  powers  so  adjusted  as  to  enable  the  many  who  bear  the 
burdens  to  effectually  curb  the  rapacity  of  those  who  gain  un- 


TNTROiDUCTION  ^^ 

merited  favors  from  legislatures,  courts  and  administrative 
officers.  Arbitrary  laws  sanctioning  slavery,  land  monopoly, 
and  special  privileges  in  trade,  transportation,  manufacturing, 
mining  and  supplying  various  needs  of  the  public,  work  out 
systems  of  favoritism  and  oppression.  These  are  aside  from 
the  direct  exercises  of  the  powers  of  the  government  for  the 
enrichment  of  the  officials  and  their  friends.  Even  in  the 
best  ordered  republic  the  taxing  power  is  exercised  to  some 
extent  merely  to  favor  a  few  persons. 

The  prudent  individual  seeks  to  mark  out  for  himself  a  line 
of  conduct  reaching  through  some  or  all  of  the  balance  of  his 
life,  which  he  believes  will  conduce  to  his  future  welfare.  He 
does  best  who  follows  a  course  which  tends  to  continually 
make  him  stronger,  better  and  happier.  Close  observance  of 
the  moral  law  and  of  every  precept  of  it  will  generally  tend 
to  a  long  life  of  increasing  enjoyment.  Neglect  of  the  needs 
of  the  body  induces  weakness  and  disease^  neglect  of  the  mind, 
ignorance  and  dependence;  idleness  and  wastefulness  poverty; 
hatred  and  envy,  enmity  ^and  suffering.  On  the  other  hand 
the  performance  of  every  duty  to  himself  and  to  others  tends 
to  health,  prosperity  and  happiness.  The  rules  by  which  the 
individual  governs  his  own  conduct  are  the  product  of  his 
education,  environment  and  native  mental  force.  He  may 
observe  them  steadily  or  spasmodically  with  corresponding 
results,  but  death  ends  the  accessible  record  of  success,  failure, 
pleasure  and  pain.  The  state  seeks  to  direct  the  destinies  of 
many  people.  Its  legitimate  object  is  essentially  similar  to 
that  of  the  private  person,  that  is  to  promote  the  welfare  and 
increase  the  happiness  of  its  citizens,  but  it  has  no  fixed  limit 
of  numbers  of  persons  affected  or  duration  of  its  influence. 
To  accomplish  this  result  it  must  cause  the  observance  by  the 
people  of  those  rules  of  conduct  which  tend  to  propagate  con- 
ditions favorable  to  human  happiness,  and  to  eliminate  conduct 
destructive  in  its  tendencies.  The  state  looks  not  merely  ^o 
the  welfare  of  persons  now  living,  but  of  the  race  in  future 
generations.  Its  rules  therefore  must  have  a  wider  range  of 
present  ap|>lication  and  look  forward  to  more  remote  conse- 
quences.    Though  immoral  conduct  mav  appear  prolitabk-  for 


78  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

short  periods  and  to  a  limited  class,  time  surely  discloses  its 
destructiveness,  Bentham's  test  of  utility,  given  general  ap- 
plication to  all  alike  and  carried  to  its  remote  consequences,  is 
a  test  of  morality.  His  measurement  of  utility  by  the  pleasure 
or  pain  produced  may  admit  of  more  doubt,  for  the  dividing 
line  between  sensations  of  pleasure  and  of  pain  is  often  in- 
capable of  ascertainment,  and  disagreeable  sensation  seem  es- 
sential to  our  vital  processes.  Life,  health,  strength,  knowl- 
edge, beauty,  abundance  of  usal)le  things,  the  love  of  friends 
and  good  will  of  all,  are  generally  regarded  as  desirable. 
There  are  certain  lines  of  conduct  that  tend  to  produce  and 
preserve  these  blessings.  There  are  others  that  prove  destruc- 
tive of  them.  It  would  seem  that  the  legitimate  function  of 
the  state  is  to  search  out  and  declare  as  substantive  law  what 
rules  of  conduct  are  beneficial  in  their  tendencies,  and  what 
are  destructive,  and  to  devise  governmental  machinery  de- 
signed to  induce  observance  of  the  former  and  avoidance  of 
the  latter,  and  that  moral  improvement  and  material  advance- 
ment should  continually  accrue  as  the  product  of  legislative 
wisdom  and  foresight.  To  what  extent  such  functions  have 
lieen  recognized  and  exercised  by  the  governments  of  the 
leading  nations  of  the  earth  is  one  of  the  main  subjects  of  our 
inquiry.  It  will  be  found  that  the  organized  forces  of  society, 
especially  in  the  hands  of  a  single  ruler,  are  often  exerted  to 
destroy,  rather  than  to  build  up,  and  that  all  the  nations  of 
the  earth  look  to  armies  and  navies  as  means  of  gain  and 
preservation,  rather  than  to  the  cultivation  of  those  firm  bonds 
cf  friendship  which  are  indispensable  to  peaceful  relations. 

The  rule  of  progress  is  good  for  evil,  kindness  to  overcome 
hatred.  Viewed  merely  as  a  cold  and  passionless  artificial 
being,  the  true  mission  of  the  state  is,  and  always  must  be, 
to  keep  people  from  harming  each  other,  and  to  lead  them  to 
move  in  concord  in  the  accomplishment  of  purposes  beneficial 
to  all.  If  all  were  fully  employed  in  moral  pursuits,  crime 
would  disappear  as  a  necessary  result. 

Selfishness  has  its  root  in  our  natures,  and  care  for  self 
is  a  moral  duty.  Care  for  our  progeny  is  bc^th  a  privilege 
and  a  duty,  and  affords  one  of  the  most  powerful  incentives 


INTRODUCTION  79 

to  the  accumulation  of  wealth  and  mastery  over  others.  In 
the  struggle  to  gain  these  many  parents  fail  to  comprehend 
the  relative  value  of  mere  inherited  wealth  and  of  favorable 
conditions  for  their  children  to  live  natural  useful  lives.  It 
is  only  when  we  clearly  perceive  that  the  welfare  of  our 
progeny  is  inevitably  locked  with  that  of  the  descendants  of 
our  neighbors,  and  that  the  only  safety  for  any  lies  in  high 
moral  standards,  justice  to  all,  and  the  growth  and  extension 
of  kindness  both  as  a  sentiment  and  a  recognized  rule  of 
conduct,  essential  to  human  happiness,  that  it  is  possible  to 
make  the  best  provision  for  future  generations.  Instead  of 
starting  life  with  great  wealth  and  a  contempt  for  useful 
labor,  it  is  far  better  for  any  normal  healthy  child  to  be 
trained  to  do  his  part  and  bear  his  share  of  the  burdens  of 
life,  and  taught  that  the  largest  and  best  life  is  that  which 
accomplishes  most  for  the  good  of  others. 

Not  to  destroy  enemies  by  war,  but  to  destroy  enmity  by 
kindness  and  friendly  intercourse;  not  to  punish  criminals, 
but  to  eliminate  crime  by  inducing  right  conduct ;  not  to  force 
the  unwilling  performance  of  duty,  but  to  lead  men  to  vol- 
untarily follow  high  moral  standards  for  the  joy  of  well 
doing ;  not  to  enforce  obedience  to  the  arbitrary  will  of  rulers, 
but  to  induce  the  acceptance  of  such  direction  as  is  essential 
to  concert  of  action;  not  to  stifle  individual  liberty,  but  to 
encourage  and  protect  in  all  worthy  efforts  and  enterprises, 
are  the  ideal  purposes  of  governments  and  laws.  How  the 
nations  of  the  earth  have  been  afflicted  with  ignorance  of 
these  fundamental  truths,  how  those  in  authority  have  dis- 
regarded them,  and  how  the  people  have  suffered  by  reason 
thereof,  we  shall  see  in  our  l)rief  review  of  the  rise  and  fall 
of  states,  and  the  princi[>Ies  by  which  they  have  been  governed. 


CHAPTER  I 


Unorganized  Tribes 


In  the  lowest  social  state  we  iind  individual  liberty  wholly 
unrestrained.  The  weak  and  despicable  Digger  Indians, 
dwelling  in  rocky  and  desert  places,  feeding  on  the  most 
disgusting  fare,  though  they  have  chiefs  in  accordance  with 
the  custcjms  of  the  more  vigorous  branches  of  the  Utah 
family,  recognize  no  authority  in  them,  and  each  individual 
follows  the  dictates  of  his  own  torpid  will. 

The  lower  Californians  did  not  differ  greatly  from  the 
Diggers  in  modes  of  life,  though  living  under  more  favor- 
able surroundings  and  exhibiting  more  providence  in  the 
manufacture  of  weapons  and  utensils.  With  well  formed  and 
vigorous  bodies  and  not  wanting  in  courage,  they  lived  with- 
out habitations,  government  or  laws  and  paired  off  at  pleasure 
without  a  conception  of  the  marriage  relation.  The  Yaghans 
of  Tierra  Del  Fuego,  living  in  a  most  inhospitable  clime  and 
under  circumstances  rendering  concert  of  action  indispensable 
to  even  a  small  degree  of  comfort,  yet  dwell  apart,  each  family 
by  itself,  naked  and  without  shelter,  recognizing  neither  chief 
nor  laws  and  feeding  on  their  own  kind. 

The  Eskimos  on  the  inhospitable  shore  of  the  Arctic  Ocean. 
though  far  superior  in  industry,  intelligence  and  nearly  every- 
thing else,  except  cleanliness,  are  also  said  to  recognize  no 
authority.  Probably  this  is  due  to  the  necessity  for  living  in 
very  small  villages,  owing  to  the  barrenness  of  the  country 
and  the  peculiar  climatic  conditions  under  which  they  live. 
The  long  night  of  winter  prevents  intercourse  with  others 
living  at  a  distance  and  effectually  isolates  each  group.  Dur- 
ing the  brief  but  busy  summer,  hunting  and  fishing  occupy 
their  attention.  For  this  concert  of  action  in  great  numbers 
is  not  advantageous.  More  can  be  accomplished  by  sejjarat- 
ing  than   by   combining.      Isolated    from   the   balance  of   the 

80 


UNORGANIZED  TRIBES  8i 

world  and  having  little  to  excite  the  cupidity  of  others,  they 
are  not  often  forced  to  fight,  but  they  are  reputed  courageous 
and  vigorous  when  put  to  the  test. 

It  appears  that  life  in  the  hunter  or  fisher  state  tends  to 
individuality  and  the  absence  of  social  organization.  It  is 
believed  that  no  instance  can  be  cited  of  a  race  of  people, 
living  exclusively  from  hunting  or  fishing  and  the  spontan- 
eous products  of  the  earth,  that  has  passed  the  stage  of  simple 
tribal  organization.  Though  the  civilized  man  can  readily 
perceive  the  advantages  that  might  accrue  to  them  from  con- 
cert of  action,  conditions  are  not  such  as  to  develop  it,  and 
probably,  if  once  developed,  any  form  of  extensive  organiza- 
tion would  soon  fall  in  pieces  without  a  marked  change  in 
the  habits  of  the  people.  Among  the  very  lowest  promiscu- 
ous intercourse  is  the  rule,  and  the  whole  burden  of  rearing 
the  young  is  cast  on  the  mother.  In  a  great  majority  of  in- 
stances, where  a  permanent  relation  is  recognized  as  existing 
between  the  man  and  woman,  the  latter  is  treated  as  a  slave 
and  forced  to  bear  his  burdens  as  well  as  her  own  and  those 
of  her  offspring.^ 

The  natives  of  Australia  appear  to  have  been  below  the 
average  of  the  American  Indians  in  most  respects.  It  is  said 
that  they  did  not  till  the  soil  at  all,  their  habitations  were  of 
the  most  crude  and  temporary  character,  being  mostly  of  bark 
or  brush.  In  the  manufacture  of  weapons  and  implements 
they  exhibited  little  skill  or  ingenuity,  having  no  knowledge 
of  metals  or  skill  in  weaving  fabrics.  They  did  not  know  the 
use  of  the  bow  and  arrow,  the  almost  universal  weapon  of 
primitive  man,  yet  the  boomerang,  a  most  curious  invention 
unknown  elsewhere,  is  their  peculiar  weapon.  In  government 
they  do  not  appear  to  have  ever  advanced  beyond  the  tribal 
stage,  with  very  little  power  in  their  chiefs.  As  with  most 
savages  the  women  are  oppressed  and  enslaved  by  the  men 
and  family  ties  are  very  weak. 

In  attempting  a  close  study  of  the  development  of  the  first 

'For  a  more  full  statement  of  the  various  customs  ceiicerning  the  rela- 
tions of  the  sexes  see  Brissaud's  "History  of  French  Private  Law."  Con- 
tinental Legal  History  Scries,  Vol.  3,  p.  i. 


82  EVOLUTIO'N  OF  GOVERNMENTS  AiND  LAWS 

steps  toward  the  formation  of  a  government,  we  are  met  by 
a  surprising;-  complication  of  difficulties.  Savage  tribes  can 
furnish  no  accurate  history  of  their  own  development.  The 
moment  they  are  brought  into  close  contact  with  superior 
people,  the  course  of  their  development  is  affected  to  a  greater 
or  less  degree  by  the  extraneous  influences  to  which  they  are 
subjected.  Habits  of  life,  fashions  in  dress  and  modes  of 
warfare  are  quickly  adapted  to  new  conditions.  Thus  in 
America  those  who  describe  the  Comanche  Indian  place  him 
on  horseback,  though  the  horse  was  first  brought  here  by  the 
white  man.  Blankets  and  beads  were  worn  by  the  natives  of 
the  eastern  and  middle  states  long  before  the  revolutionary 
war,  and  a  description  of  an  Indian  costume  without  them 
was  hardly  complete,  though  the  material  came  from  Europe. 
Guns  and  knives  soon  supplanted  bows  and  tomahawks. 
Again  the  wars  and  migrations  of  tribes,  the  changing  con- 
ditions and  vicissitudes  under  v/hich  they  lived,  afford  no  op- 
j:)ortunity  to  study  a  continuing  development  of  a  particular 
tribe  or  nation. 

Few  if  any  American  Indians  can  now  l)e  found  whose 
character,  customs  and  even  tribal  organizations  have  not  been 
changed  and  moulded  by  the  influence  of  the  whites.  Those 
that  have  remained  near  their  ancestral  homes  have  little  left 
of  the  character  or  habits  of  their  wild  ancestors.  Those 
that  have  been  removed  to  western  reservations  have  also  felt 
the  effects  of  the  teachings  and  examples  of  the  whites,  often 
to  their  destruction.  This  frequent  and  extreme  subjection 
to  vicissitudes  is,  however,  a  characteristic  of  the  savage  state, 
and  no  one  need  ever  hope  for  an  opportunity  to  calmly  study 
the  development  of  any  savage  people,  uncontaminated  by 
contact  with  more  civilized  people  for  many  consecutive  gen- 
erations. The  reason  for  this  is  plain.  Steady  development 
demands  steady  conditions.  Not  only  were  the  Indian  tribes 
subject  to  destruction  at  the  hands  of  their  enemies,  but  their 
indolence  and  improvidence  left  them  constantly  liable  to 
famine,  which  often  depopulated  their  villages. 

The  rudimentary  society  is  always  domestic  in  character, 
but  usually  it  is  the  rule  of  the  strong  male  over  the  female 


UNORGANIZED  TRIBES  83 

slave,  ill  all  quarters  of  the  globe  warlike  savages  have  been 
accustomed  to  enslave  prisoners  whom  they  did  not  kill.  Yet 
the  custom  of  adopting  e\en  prisoners  of  war  to  whom  the 
captor  chances  to  take  a  liking  is  not  uncommon.  This  was 
the  settled  policy  of  the  Iroquois  and  a  great  source  of 
strength.  The  slavery  is  generally  temporary  in  character, 
resulting  soon  in  death  or  emancipation  of  the  slave.  The 
habits  of  life  of  the  savage  are  not  such  as  to  admit  of  the 
propagation  and  preservation  of  a  servile  race.  In  our  efforts 
to  generalize  the  earliest  appearances  of  social  organization, 
we  are  liable  to  take  up  a  preconceived  theory  and  proceed 
with  a  smooth  and  logical  narration  of  orderly  development. 
But,  when  we  attempt  to  cite  authorities  and  demonstrate  the 
correctness  of  our  theories  from  known  instances,  we  are 
met  with  innumerable  perplexities  and  apparent  contradic- 
tions. Observers  who  are  ignorant  of  the  language  of  the 
people  they  attempt  to  describe  often  give  most  unsatisfactory 
accounts.  They  report  what  they  see  and  often  fill  out  their 
descriptions  with  what  they  infer  to  be  true.  But  as  we  pro- 
ceed we  shall  find  that  these  difficulties  attend  the  study  of 
the  development  of  governments  in  all  forms  and  stages  in  a 
marked  degree,  and  that  the  human  capacity  and  desire  to 
choose  and  invent  leads  to  most  perplexing  want  of  uniform- 
ity in  the  development  of  social  order.  While  the  earliest 
form  of  mastery  and  rulership  of  a  permanent  character  ap- 
pears to  be  domestic  and  a  personal  mastery  of  one  over  an- 
other, the  next  step  generally  has  its  foundation  in  war. 

Under  conditions  of  isolation  it  is  possible  for  a  tribe  to 
make  much  progress  in  industry  without  developing  a  govern- 
mental system. 

The  Ifugaos,  a  head-hunting  tribe  classed  as  of  Malay  stock, 
inhabiting  a  mountainous  district  of  northern  Luzon,  num- 
bering about  120,000,  have  no  trace  of  political,  judicial  or 
])rie.stly  government,  yet  have  constructed  and  maintained 
from  remote  antiquity  the  most  extensive  and  admiral)le  system 
of  mountain  terraces  for  rice  culture  to  be  found  anywhere  in 
the  world,  the  one  in  the  Ik-nue  valley  being  12  kilometers  long 
without  a  break  with  some  of  the  terrace  walls  ()0  feet  high. 


84  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  that  in  the  Asin  valley  having  no  rows  of  terraces  from 
the  river  to  the  top.  These  terraced  fields  are  irrigated  from 
the  mountain  streams  and  cultivated  with  great  industry  and 
skill.  They  are  not  tribal  property,  but  privately  owned  in 
unequal  parts,  some  members  of  the  tribe  being  rich  and  others 
poor.  Though  they  ha\e  no  written  language,  rights  to  prop- 
erty and  domestic  relations  are  regulated  by  a  fairly  complete 
set  of  customary  laws  and  taboos,  transmitted  orally  from 
generation  to  generation.  Penalties  are  also  im|)ose(l  for 
various  offenses.  For  their  enforcement  these  laws  are  de- 
pendent on  the  general  sentiment  of  the  people  and  the  active 
force  of  the  family  of  the  injured  or  offended  party.  The 
nearest  approach  to  an  official  is  the  go-between,  who  under- 
takes by  negotiation,  persuasion  or  threats  to  bring  about  the 
settlement  of  such  controversies  as  he  is  called  on  to  deal  with. 
In  the  last  resort  the  family  of  the  wronged  party  uses  the 
spear,  but  it  is  said  that  loss  of  life  by  violence  of  all  descrip- 
tions is  not  nearly  so  great  as  among  the  people  of  the  United 
States. 

The  surprising  thing  about  these  people  is  that  with  so  much 
industry,  thrift  and  private  wealth  as  they  have,  they  are,  and 
so  far  as  known  always  have  been,  without  any  governmental 
machinery  to  protect  owners  in  their  property  rights.  The 
general  rule  the  world  over  seems  to  be  that  some  form  of 
governmental  protection  goes  along  with  jM'ivate  wealth.  This 
tribe  proves  that  the  laws  of  an  isolated  tribe,  generally  known 
and  understood  by  the  people,  may  regulate  their  social  and 
property  rights  without  the  aid  of  courts  or  other  governmental 
machinery.  Laws  like  many  of  our  numicipal  regulations, 
which  are  neither  known  to  or  observed  by  the  people  general- 
Iv.  are  of  verv  doubtful  value,  however  much  governmental 
machinerv  may  be  devised  for  their  enforcement.^ 

Authorities 
Bancroft:     Native  Races  of  the  Pacific  States. 
Schoolcraft:    Indian  Tribes  of  the  United  States. 
Encyclopaedia  Britannica — passim. 

^  Ifugao    Law,    Barton,    University   of    California    Press. 


CHAPTER  II 

Tribal  Organizations  and   Simple   Despotisms 

Passing  from  our  imperfect  view  of  the  most  low  and 
repulsive  specimens  of  human  beings  to  those  possessing  more 
intelhgence  and  exhibiting  tendencies  toward  social  organi- 
zations, we  find  everywhere  that  customs,  superstitions  and 
fashions  precede  governments  and  laws.  The  tribal  organi- 
zations of  hunters  and  fishers  do  not  possess  the  true  at- 
tributes of  government,  in  the  sense  in  which  it  is  used  by 
civilized  man,  to  as  great  an  extent  as  one  of  the  many  great 
corporations  of  modern  times.  The  authority  of  the  chiefs 
is  hardly  more  than  advisory.  Matters  affecting  the  tribe  are 
usually  determined  by  public  assemblies,  and  war  parties  are 
made  up  of  volunteers  who  submit  to  neither  discipline  nor 
command.  Yet  everywhere  and  even  among  the  very  lowest, 
customs,  ceremonies  and  fashions  are  found  to  exist,  the  ol)- 
servance  of  which  is  compelled  by  public  sentiment.  These 
are  often  most  cruel  and  unnatural.  Let  us  examine  some  of 
them. 

The  custom  of  perforating  the  lips,  nose  and  ears,  of  cut- 
ting off  fingers,  making  incisions  in  the  flesh  and  inserting 
most  unsightly  ornaments  in  lips,  nose  and  ears  is  common 
with  more  or  less  variation  among  American  Indians,  Afri- 
can tribes  and  Polynesians.  Thus  the  Thlinkeet  women  slit 
the  under  lip  and  gradually  enlarge  the  opening  until  a  large 
block  of  wood  is  inserted  from  two  to  six  inches  in  length  and 
from  one  to  four  inches  in  width  and  half  an  inch  thick.  It 
is  so  large  that  when  withdrawn  the  lip  falls  over  on  the  chin. 

The  Koniagas  and  Thlinkeets  imprison  girls  arriving  at  the 
age  of  puberty  in  huts  so  small  as  to  keep  them  continually  in 
?  cramped  position  for  six  months  or  even  a  year.  Dances 
and  feasts  of  various  kinds  are  characteristic  of  savages  every- 
where.   Love  of  ornament  seems  to  precede  a  desire  for  clotli- 

8S 


86  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ing.  Thus  in  many  parts  of  the  world  savages  may  be  found 
tattooed,  painted,  adorned  with  feathers,  quills,  rings,  shells, 
stone  and  wooden  ornaments,  often  hideous  in  appearance  to 
the  stranger,  but  rigidly  exacted  by  custom,  while  covering 
for  decency  or  comfort  is  not  thought  of.  The  Indians  of 
North  America  were  remarkably  formal  and  ceremonious  in 
all  their  negotiations  and  consultations.  Their  grand  councils 
are  sometimes  described  as  models  of  decorous  procedure. 
Marriage  ceremonies  were  not  generally  very  formal,  and  the 
bond  of  union  often  not  of  great  force.  Polygamy  was  gen- 
erally allowed,  but  monogamy  was  the  rule.  They  were  un- 
doubtedly far  more  lax  in  morals  than  the  whites,  yet  the 
difference  is  still  of  degree.  The  Indian  lodges  among  the 
leading  tribes  sheltered  families  where  continency  and  affec- 
tion were  not  wholly  unknown.  Among  them  there  were 
marked  dift'erences  as  well  in  moral  character  as  in  mental 
capacity.  The  curious  custom  of  dividing  the  tribes  by  totems 
was  not  a  mere  whim  but  had  its  foundation  in  a  sound  policy, 
and  the  rules  relating  to  marriages  based  on  it  tended  to  check 
too  close  in  and  in  breeding,  likely  to  occur  where  people 
were  divided  into  such  small  societies.  Funeral  rites  were 
often  impressive  and  proportioned  to  the  estimation  in  which 
the  deceased  was  held.  Medicine  men  imposed  on  the  igno- 
rant with  their  charms,  incantations,  and  absurd  remedies,  yet 
the  medicinal  properties  of  some  plants  were  known  and  with 
all  their  filthiness  the  natives  of  the  Pacific  coast  appreciated 
the  value  of  a  hot  bath,  for  which  most  tribes  provided  a  crude 
bath-house.  Alcholic  stimulants  seem  to  have  been  wholly 
unknown  to  them.  Their  only  intoxication  was  that  resulting 
from  war  dances,  superstition  and  bloodshed,  by  which  at 
times  they  were  wrought  to  a  state  of  frenzy.  Tobacco  was 
much  used  and  stupor  and  sickness  often  resulted  from  their 
gluttony  at  feasts.  Undoubtedly  the  wild  tribes  of  America 
exhibited,  over  an  extensive  area  and  under  diverse  circum- 
stances, the  first  beginnings  of  organized  societies  more  com- 
pletely than  any  other  people.  While  many  variations  of 
manners  and  customs  are  to  be  noted,  there  was  a  marked 
similarity  in  their  crude  tribal  organizations,  clearly  traceable 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     87 

to  their  habits  of  life  and  environments.  The  Indian  was 
first  and  mainly  a  warrior,  but  to  live  he  must  hunt  and  fish. 
Though  most  of  the  eastern  tribes  raised  a  little  corn  and 
some  few  other  vegetables,  they  still  relied  mainly  on  game 
for  their  subsistence. 

Their  only  conception  of  title  to  land  was  for  a  hunting 
ground  and  temporary  occupancy.  This  title  each  tribe  was 
called  on  to  maintain  against  the  encroachments  of  hostile 
neighbors.  With  their  habits  of  life,  a  dense  population 
could  not  be  maintained  nor  a  large  city  be  built.  Their 
property  consisted  only  of  weapons,  temporary  movable 
lodges  and  spoils  of  the  chase,  supplemented  by  crude  house- 
hold utensils  made  from  wood  or  stone.  Moneys  and  reve- 
nues they  did  not  know.  In  seeking  to  understand  their 
government  it  is  of  first  importance  to  know  what  could  be 
governed.  This  ordinarily  was  a  village  of  a  few  lodges, 
seldom  more  than  one  hundred.  The  people  of  the  village 
were  mostly  related  by  blood  and  marriage.  Whenever  oc- 
casion required  they  could  easily  come  together  for  consulta- 
tion. Each  was  known  to  the  other.  Personal  prowess  in  war 
and  in  the  chase,  as  well  as  eloquence  and  wisdom  in  council, 
were  quickly  discerned  and  understood  by  all.  There  was 
a  strong  tendency  to  community  of  enjoyment  of  game  taken 
and  crops  gathered.  Under  these  circumstances  leadership 
was  accorded  to  him  who  gained  the  approbation  of  his  fel- 
lows. A  chief  was  a  natural  leader,  chosen  by  his  comrades. 
As  a  ruler  however  he  scarcely  exercised  any  of  the  attributes 
of  sovereign  power.  He  could  not  levy  taxes,  but  was  ex- 
pected to  generously  distribute  the  game  he  secured.  He 
had  no  lands  yielding  rent.  He  could  not  make  laws  for  the 
people  or  declare  war  or  make  peace  for  them.  All  such  mat- 
ters were  referred  to  grand  councils.  His  war  partv  as  a 
rule  was  made  up  of  such  as  chose  to  follow  him.  In  battle 
much  more  depended  on  individual  craft  and  bravery  than  on 
generalship.  Here  and  there  throughout  history  we  learn  of 
leaders  wh(j  exhibited  a  capacity  for  organization  and  general- 
ship, and  who  were  able  to  imi)ress  on  scattered  tribes  the  ad- 
vantages of  c(jmljination   and   concert  of   action    for   mulual 


88  EVO'LUTIOX  OF  GOVERNMENTS  AiND  LAWS 

protection.  These  combinations  usually  fell  in  pieces  at  the 
death  of  the  leader. 

The  famous  Iroquois  confederacy  is  an  example  of  a  more 
enduring-  and  efficient  coml)ination,  which  enabled  the  six 
nations  to  maintain  their  hold  on  the  rich  hunting  grounds  and 
well  stocked  lakes  and  streams  of  New  York  against  all  hos- 
tile tribes.  Their  superiority  over  hostile  tribes  was  due  to 
their  superior  combination  and  nothing  but  the  irresistible 
march  of  the  whites  was  able  to  destroy  them. 

The  Comanches  also  evidenced  some  capacity  for  organi- 
zation and  maintained  a  powerful  confederacy.  Neither  of 
these  confederacies  however  presents  much  semblance  of  a 
government.  The  levy  of  taxes  and  expenditure  of  the  money 
by  public  officers,  which  plays  so  great  a  part  in  all  advanced 
states,  was  unknown.  The  members  of  the  tribes  were  all 
warriors  with  no  other  calling  to  interfere,  A  levy  of  forces 
was  a  levy  en  masse,  and  public  sentiment  was  always  suffi- 
ciently powerful  to  drive  every  ablebodied  man  to  seek  dis- 
tinction in  war.  While  the  women  and  children  were  usually 
left  in  a  place  of  comparative  safety,  when  war  parties  w-ere 
out  the  organization  of  society  was  not  greatly  changed.  All 
drudgery  was  done  by  the  women  in  peace  as  well  as  in  war, 
and  feasts  and  famines  alternated,  whether  the  males  were 
on  the  war  path  or  in  the  lodges. 

The  ancient  Germans  as  described  by  Caesar  and  Tacitus 
present  many  points  of  resemblance  to  the  Indians  in  customs 
and  environments  as  well  as  in  social  organization,  though  in 
a  much  smaller  territory.  Tacitus  says :  "I  concur  in  opinion 
with  those  who  deem  the  Germans  never  to  have  intermarried 
with  other  nations;  but  to  be  a  race  pure,  unmixed  and 
stamped  with  a  distinct  character.  Hence  a  family  likeness 
pervades  the  whole  though  their  numbers  are  so  great;  eyes 
stern  and  blue,  ruddy  hair,  large  bodies,  powerful  in  sudden 
exertions,  J3ut  impatient  of  toil  and  labor,  least  of  all  capable 
of  sustaining  thirst  and  heat,  cold  and  hunger  they  are  ac- 
customed by  their  climate  and  soil  to  endure."^ 

"It  is  well  known  that  none  of  the  German  nations  inhabit 

'  Tacitus,  Germany  C  4. 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     89 

cities  or  even  admit  of  contiguous  settlements.  They  dwell 
scattered  and  separate  as  a  spring",  a  meadow  or  a  grove 
chance  to  invite  them.  Their  villages  are  laid  out,  not  like 
ours  in  rows  of  adjoining  buildings;  but  everyone  surround- 
ing his  house  with  a  vacant  space  either  by  way  of  security 
against  fire  or  through  ignorance  of  the  art  of  building.  For 
indeed  they  are  unacquainted  with  the  use  of  mortar  and 
tiles,  and  for  every  purix;)se  employ  rude  misshapen  timbers, 
fashioned  with  no  regard  to  pleasing  the  eye."  They  also 
dug  and  inhabited  caves. - 

"In  the  election  of  kings  they  have  regard  to  birth;  in  that 
of  generals  to  valor.  Their  kings  have  not  an  absolute  or  un- 
limited power;  and  their  generals  command  less  through  the 
force  of  authority  than  of  example.  If  they  are  daring,  ad- 
venturous, and  conspicuous  in  action,  they  procure  obedience 
from  the  admiration  they  inspire.  None  however  but  the 
priests  are  permitted  to  judge  offenders,  to  inflict  bonds  or 
stripes,  so  that  chastisement  appears,  not  as  an  act  of  mili- 
tary discipline,  but  as  the  instigation  of  the  god  whom  they 
suppose  present  with  warriors."^  They  were  great  gamblers. 
"On  affairs  of  small  moment  the  chiefs  consult;  on  those  of 
greater  importance  the  whole  community,  yet  with  this  cir- 
cumstance that  what  is  referred  to  the  decision  of  the  people, 
is  first  maturely  discussed  by  the  chiefs."^ 

The  real  power  seems  at  all  times  to  have  been  in  the  gen- 
eral assembly  which  listened  to  orators  and  leaders  and  ga\e 
weight  to  the  counsels  of  such  as  it  chose  to  follow.  Prowess 
in  arms  was  always  the  main  source  of  distinction  and  war 
was  the  only  real  business  of  life.  Their  scanty  clothing  was 
made  largely  from  the  skins  of  wild  beasts  and  that  of  both 
men  and  women  was  fashioned  substantially  alike.  They 
were  extremely  hospitable  both  to  strangers  and  accjuaint- 
ances.  As  with  all  tribes  which  have  not  reached  the  com- 
mercial stage,  they  were  fond  of  giving  and  receiving 
))resents.  In  agriculture  they  do  not  appear  to  have  pro- 
gressed   farther   than   the   Creeks,   Cherokces   or   Navajos   at 

'Id.C  16.  'Id.  C  7-  *Id.C  II. 


90  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  time  of  the  advent  of  the  white  man,  nor  in  architecture 
or  the  manufacture  of  clothin^-  and  household  utensils.  The 
description  so  far  given  of  the  (lermans  in  the  time  of  Caesar 
and  Tacitus  would  apply  very  well  to  most  of  the  more  id- 
vanced  and  vigorous  Indian  trihes  at  the  time  of  their  lirst 
contact  with  the  whites.  Let  us  note  the  leading-  points  of 
difference.  The  Germans  had  horses  and  cattle.  They  made 
beer  and  the  tribes  near  the  Rhine  also  used  wine.  They 
drank  to  excess.  They  used  iron  for  their  weapons.  They 
had  fixed  customs  with  reference  to  the  use  of  land  for  til- 
lage, but  which  hardly  amounted  to  an  assertion  of  title  even 
in  the  tribe.  Though  subject  to  the  vicissitudes  of  war  and 
sometimes  driven  from  j)lace  to  place,  they  were  less  mi- 
gratory than  the  Indians.  They  were  more  cleanly  and  bet- 
ter fed,  having  the  advantages  of  milk,  cheese  and  the  flesh 
of  their  cattle.  The  most  marked  and  important  characteristic 
of  their  manners,  as  described  by  Tacitus  and  concurred  in 
by  all  the  early  writters,  is  the  purity  of  their  domestic  rela- 
tions, the  care  taken  in  rearing  their  young  and  preserving 
their  strength.  Chastity  is  seldom  characteristic  of  barbarous 
races,  but,  in  this  particular,  their  manners  were  in  striking 
contrast  with  those  then  prevailing  in  Rome.  In  the  develo])- 
ment  of  government  it  is  apparent  that  the  Germans  at  the 
time  of  our  first  introduction  to  them  were  in  substantially  the 
same  stage  as  the  Comanches,  Iroquois  and  other  more  ad- 
vanced tribes  of  the  north  at  the  time  of  the  discovery  of 
America. 

The  incipient  stages  of  government  everywhere  exhibit 
either  voluntary  association  for  a  common  purpose  or  the 
despotic  rule  of  the  strong.  In  the  former  case  the  authority 
terminates  with  the  necessity  calling  it  into  existence,  and  in 
the  latter  is  dependent  on  the  capacity  of  the  master  to  main- 
tain his  supremacy.  In  either  case  the  authoritv  exercised  is 
arbitrary  in  character  and  not  exercised  in  accordance  with 
any  established  rules. 

Among  the  American  Indians  the  organizations  were 
largely  voluntary  in  character.  In  Africa  despotic  tendencies 
predominate.    The  savage  tribes  of  Africa  are  not  less  given 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     91 

to  bloodshed  than  the  Indians,  but  possibly  a  Httle  less  in- 
clined to  inflict  cruel  tortures  on  enemies,  ecjually  violent  in 
temper,  but  rather  warmer  in  attachment,  ec^ually  warlike, 
but  more  inclined  to  tight  in  the  open  and  on  even  terms. 

In  making  provisions  for  the  future,  the  African  tribes  are 
far  superior  to  the  Indians,  Even  the  most  fierce  and  inde- 
pendent tribes  cultivate  the  soil  to  good  purpose,  raising  large 
variety  of  vegetables  and  fruits  and  also  keep  cattle,  goats 
and  fowls,  from  which  they  are  supplied  with  meat,  milk, 
butter  and  eggs.  This  is  especially  true  of  the  stalwart  tribes 
and  nations  dwelling^  in  the  great  lake  region  of  equatorial 
Africa.  The  Hottentots,  often  mentioned  as  of  a  very  low 
type,  tilled  the  soil  and  kept  their  herds.  In  manufactures 
workers  in  iron  are  found  by  travelers  in  the  heart  of  the 
continent. 

The  classification  often  made  of  the  stages  of  progress  of 
the  race,  based  on  the  nature  of  the  implements  used,  will  not 
hold  good  to  any  degree  whatever  as  a  classification  of  social 
development.  The  stone  age,  the  bronze  age,  the  iron  age, 
are  supposed  to  name  the  successive  stages  of  human  pro- 
gress, and  in  the  development  of  the  arts  doubtless  do,  but  in 
moral  and  social  development  they  indicate  nothing.  Nor 
are  the  designations  as  hunters,  shepherds  and  tillers  of  the 
soil  more  expressive  in  these  respects.  Along  the  great  Congo 
and  its  tributaries  are  to  be  found  many  tribes  which  have 
]7assed  all  these  stages,  having  their  flocks  and  herds,  their 
gardens,  and  fields  of  grain  and  fruits,  which  evidence  con- 
siderable skill  in  the  manufacture  of  household  implements, 
boats,  nets,  etc.  and  also  forge  iron,  from  which  they  make 
kni\cs,  si)ears  and  other  weapons,  yet  morally  these  people  are 
among  the  most  depraved.  They  are  horrible  cannibals. 
They  are  thieves  and  robbers  as  well  as  murderers  at  all  times. 
Domestic  virtue  is  unknown.  Some  tribes  eat  the  old  people 
when  they  cease  to  be  capable  of  taking  care  of  themselves, 
if  we  may  believe  the  accounts  of  travelers.  With  a  great 
part  of  them  the  governmental  growth  does  not  extend  far- 
ther than  tribal  organization  with  no  substantial  power  in 
the  chiefs. 


92  EVOLUTION  OF  GOVERNMENTS  AiND  LAWS 

Throughout  Africa  all  governments  seem  to  be  merely  an 
extension  of  the  relation  of  master  and  slave.  Though  pos- 
sessed of  strong  and  vigorous  bodies,  of  considerable  skill 
and  industry  in  providing  for  bodily  comforts,  of  courage 
as  well  as  cunning  in  war,  they  are  sadly  deficient  in  social 
virtue.  From  the  small  weak  tribe,  struggling  for  existence 
against  its  enemies,  to  the  powerful  kingdoms  like  Uganda, 
Unyoro,  Dahomey  and  Abyssinia,  all  authority  is  exercised 
unchecked  by  law.  Whatever  the  ruler  does  is  in  accordance 
with  his  individual  will.  Where  the  power  is  conceded  the 
mode  of  its  exercise  is  never  questioned.  When  the  king  of 
Uganda  sees  fit  to  depose  some  one  he  has  elevated  to  a  high 
position,  he  sends  a  favorite  with  a  sufficient  following  to 
"eat  him  up,"  which  means  that  the  obnoxious  one  is  killed 
and  his  wives,  slaves,  cattle  and  property  are  confiscated  and 
given  to  whomsoever  the  despot  wills.  The  practice  of  poly- 
gamy is  limited  only  by  poverty.  A  great  despot  like  the 
king  of  Dahomey  may  far  outclass  even  the  great  Solomon 
in  the  number  of  his  wives.  The  mode  of  administering  the 
greatest  of  their  governments  is  exceedingly  simple.  Where- 
ever  the  king  acts  directly  on  his  subjects,  he  rules  as  an 
absolute  despot,  enforcing  his  commands  summarily  by  seiz- 
ing property  or  person  and  taking  life  according  to  his  humor. 
Where  he  acts  through  subordinates  whom  he  cannot  oversee, 
the  same  despotic  power  and  discretion  is  exercised  by  the 
underling,  who  is  only  restrained  by  fear  of  displeasing  the 
king.  The  horrible  cruelty  so  often  exhibited  by  these  despots 
would  seem  such  an  intolerable  evil  that  anarchy  would  be 
preferable.  Yet,  comparing  the  conditions  of  the  people  in 
the  strong  states  with  those  of  the  scattered  tribes,  we  find 
that  even  such  a  despotism  exists  because  it  is  better  than  no 
government.  Scattered  villages,  unprotected  by  any  strong 
combination,  are  surprised  and  destroyed  by  some  marauding 
tribe.  Peace  and  plenty  for  a  generation  in  some  spot  may 
be  followed  by  partial  or  total  destruction  in  a  day.  This 
has  been  the  history  of  wild  tribes  everywhere  from  the 
earliest  times  of  which  we  have  any  account.  Tribe  against 
tribe  in  battle  to  the  death  from  generation  to  generation  has 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     93 

been  the  history  of  the  race.  The  hunters  of  America,  relying 
mainly  on  game  and  spontaneous  products,  were  kept  con- 
stantly reduced  in  numbers  by  fierce  wars  and  frequent  fam- 
ines. The  Africans  with  far  better  food  supplies  multiplied 
faster  and  developed  more  industry,  yet  bloody  and  devastat- 
ing wars  seem  to  have  been  not  less  frequent  with  them.  •  The 
effect  of  organized  government  everywhere  has  been  to  check 
tribal  wars,  to  encourage  industry,  and  to  increase  population. 
Though  a  large  country  be  at  war,  there  is  peace  to  all  save 
those  in  and  about  the  scene  of  the  struggle.  The  great  na- 
tion too  is  not  likely  to  be  more  frequently  at  war  than  the 
small  tribe,  and  the  percentage  of  destruction  of  those  en- 
gaged generally  increases  in  inverse  ratio  to  numbers. 

The  African  race  throughout  all  ages  has  demonstrated  its 
ability  to  survive  and  even  increase  in  contact  with  the  other 
races.  Although  northern  Africa  has  been  subject  to  the 
influence  of  European  and  Asiatic  civilization  from  the  ear- 
liest times,  it  still  retains  its  distinctive  characteristics,  and 
the  negro  type  dwelling  south  of  the  great  desert  exhibits 
scarcely  a  trace  of  intermixture  with  the  whites.  Along  the 
eastern  coast  it  is  true  that  the  Arabs  have  intermixed  and 
modified  the  type  to  some  extent,  but  the  predominant  char- 
acteristics are  distinctly  African.  The  civilization  of  ancient 
Egypt  does  not  appear  to  have  ever  ascended  the  Nile  far 
beyond  the  desert,  but  it  is  probable  that  knowledge  of  agri- 
culture and  the  art  of  forging  iron  has  spread  over  Africa 
from  Egypt  and  Arabia. 

In  comparatively  recent  times  European  civilization  has 
taken  a  firm  hold  in  south  Africa  and  is  rapidly  extending 
toward  the  north.  To  what  extent  the  African  will  give  way 
and  vanish  before  the  Caucasian  in  the  Tropical  regions  re- 
mains to  be  seen.  In  America  it  has  been  demonstrated  that 
the  negro  multiplies  both  while  in  the  condition  of  a  slave 
to  the  white  and  as  a  free  man.  Everywhere  and  under  all 
conditions  he  exhibits  strong  attachment  to  his  offspring  and, 
while  lecherous,  is  still  warm  in  domestic  and  friendly  attach- 
ments, and  often  exceedingly  kindly  in  disposition  when  his 
passions   are   dormant.      In    physical    development    the   black 


94  EVOLUTION  OF  GOVERNMENTS  MND  LAWS 

man  can  not  be  classed  as  clearly  inferior  to  the  white. 
Though  some  tribes  are  dwarfed  and  illformed,  the  great 
majority  are  equal  in  size  and  strength  to  the  best  developed 
Caucasians.  Why  they  should  have  made  so  little  progress 
in  constructing  governments  and  enacting-  laws  is  an  inter- 
esting subject  of  inquiry.  Except  where  brought  in  direct 
contact  with  some  superior  race,  they  seem  never  to  have 
learned  any  system  of  writing  and,  as  we  have  seen,  their 
only  idea  of  government  has  been  that  of  arbitrary  personal 
authority,  unrestrained  by  law  or  settled  custom.  Though  in 
the  region  of  the  great  lakes  the  natives  cultivate  the  land, 
often  to  a  high  degree,  Livingston,  Stanley  and  other  travelers 
fail  to  inform  us  of  any  system  of  laws  governing  land  ten- 
ures. The  chief  or  king  may  decide  disputes  between  con- 
flicting claimants,  but  he  does  so  according  to  his  own  caprice 
rather  than  by  any  settled  law.  The  marvelous  fertility  of 
the  soil,  the  extent  of  unoccupied  land  and  the  frequent  de- 
struction of  communities  by  war,  seem  to  afford  a  continual 
outlet  for  any  increase  of  numbers.  It  may  be  that  a  close 
study  by  a  careful  observer  would  disclose  more  in  the  nature 
of  settled  principles  of  government  among  them  than  the 
writings  of  hasty  travelers  record,  but  it  seems  clear  that 
their  conceptions  of  rules  of  property  and  laws  governing  the 
conduct  of  individuals  toward  each  other,  except  where  modi- 
lied  by  contact  with  other  races,  are  not  in  advance  if  really 
equal  to  those  of  the  American  Indians. 

Intermediate  the  prevailing  tribal  organizations  of  America 
and  the  highly  developed  governmental  systems  of  the  Mexi- 
cans and  Peruvians,  were  many  nations  advanced  somewhat 
above  the  common  level  of  the  rude  tribes.  The  Comanches 
presented  an  advanced  type  of  the  Indians  who  occupied  most 
of  the  North  American  contient,  well  formed  and  vigorous  in 
physique,  brave  and  warlike,  hospitable  in  peace,  fierce  and 
cruel  in  war.  They  were  nomads.  They  held  public  councils 
at  regular  intervals  to  discuss  public  matters,  make  laws  and 
punish  crime.  The  majority  ruled.  Laws  were  published 
by  a  crier.  Justice  was  administered  by  a  council  of  the 
tribe  whose  sentence  was  carried  into  execution  by  the  chiefs. 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     95 

A  system  of  signals  by  fire  and  smoke  was  used  to  call  their 
forces  together  in  case  of  need.  In  war  they  were  formid- 
able and  could  bring  to  the  field  a  force  of  several  thousand. 
Crimes  were  punished  rigorously  and  toward  each  other  they 
were  peaceable.  Their  treatment  of  women  was  in  accordance 
with  the  usual  customs  of  savages.  Wives  were  bought  and 
made  drudges  for  their  husbands  and  polygamy  prevailed. 
No  attention  was  paid  to  agriculture,  but  the  vast  herds  of 
buffaloes  on  the  plains  afforded  an  ample  supply  of  meat. 
The  Navajos,  Mojaves  and  Yumas  were  more  peaceful  and 
industrious  in  their  habits.  They  cultivated  the  soil  and 
raised  corn,  wheat,  beans,  pumpkins,  melons  and  other  vege- 
tables. The  Mojaves  built  substantial  dwellings  of  very  pecu- 
liar construction,  and  cylindrical  granaries.  Some  tribes  en- 
tered their  dwellings  from  the  top,  having  neither  doors  nor 
windows.  The  Navajos  were  shepherds,  and  their  blankets 
have  become  noted.  In  the  far  northwest  the  natives  showed 
a  tendency  to  more  settled  modes  of  life  and  to  class  distinc- 
tions. The  Nootkas,  Chinnooks  and  Thlinkeets  built  large  and 
substantial  dwellings  of  wood,  sufficient  in  size  for  many 
families  occupying  separate  apartments.  Property  in  these 
homes  was  recognized  as  vested  in  those  who  combined  to 
build  them.  The  villages  of  the  Nootkas  were  regularly  laid 
out.  Something  like  hereditary  rank  was  recognized,  though 
the  head  chief  had  little  real  power  except  over  his  slaves. 
A  sort  of  nobility  existed,  based  on  individual  distinction  in 
war  or  social  liberality.  Among  the  Thlinkeets  and  Haidahs 
the  power  of  the  chiefs  is  said  to  have  been  despotic  at  times. 
All  the  Northwestern  tribes  held  slaves  and  had  notions  as  to 
property  rights.  Though  instances  may  be  cited  of  arbitrary 
power  exercised  by  Indian  chiefs,  the  prevailing  genius  was 
that  of  liberty  and  equality.  Personal  prowess  was  the  source 
of  distinction,  and  recognized  individual  merit  the  commis- 
sion of  leadership.  The  cunning  of  the  medicine  man,  work- 
ing on  the  ignorance  and  superstition  of  the  members  of  the 
tribe,  gave  him  influence,  but  little  real  authority.  No  priestly 
class  appears  to  have  developed  excei)t  in  the  advanced  states 
of  Mexico  and  Peru. 


96  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Authorities 

Schoolcraft:     Indian  Tribes  of  the  U.  S. 

Tacitus :     Germany. 

David  Livingston:  Travels  and  Researches  in  Africa,  Last 
Journal. 

H.  M.  Stanley :  Through  the  Dark  Continent,  In  Darkest 
Africa,  Through  the  Great  Forest. 

Elisee  Reclus :    Africa. 

Hugh  Murray :    The  African  Continent. 

Joseph  Thomson :     Through  Masai  Land. 

Caleb  Atwater:     Indians  of  the  Northwest. 

Stephen  Powers:     Tribes  of  California. 

H.  H.  Bancroft:     Native  races  of  the  Pacific  States. 

John  Thos.  Short:     The  North  Americans  of  Antiquity. 

S.  G.  Drake :    Aboriginal  Races  of  North  America. 

S.  G.  Goodrich :     History  of  the  Indians  of  North  America. 

Henry  Alexander:  New  Light  in  Early  History  of  North- 
west. 

Louis  Hennepin. 


CHAPTER  III 

Pacific  Islands 

The  social  state  of  the  natives  of  the  Pacific  Islands  pre- 
sents a  most  curious  study.  Their  character  as  depicted  by 
the  early  discoverers  is  contradictory.  This  however  is  largely 
true  of  all  savages.  At  times  they  appear  as  gentle,  kindly, 
hospitable  and  peaceful,  at  other  times  as  fierce,  treacherous, 
vicious  and  murderous.  That  they  v^ere  mostly  cannibals  is 
beyond  doubt,  yet  they  generally  lived  under  conditions  af- 
fording abundant  and  varied  food  supplies.  They  tilled  the 
soil,  raised  pigs  and  fowls  and  in  most  parts  recognized  in- 
dividual ownership  of  the  'soil.  Though  scattered  over  numer- 
ous islands  distant  thousands  of  miles  from  each  other,  the 
people  appear  to  be  of  one  race  and  their  language  and  cus- 
toms are  surprisingly  similar  from  Hawaii  to  New  Zealand. 
The  ignorance  of  Europeans  of  their  ideas  and  superstitious 
observances  of  the  laws  of  taboo  have  doubtless  led  to  many 
exhibitions  of  fierceness  by  the  natives,  the  reason  of  which 
has  not  been  understood  by  Europeans.  The  violation  of  a 
taboo  by  taking  a  sacred  thing  or  invading  a  sacred  place 
aroused  the  otherwise  peaceful  islander  to  murderous  frenzy. 
Kingly  authority,  class  distinctions  and  slavery  appear  to  have 
been  general  in  their  system,  which  is  spoken  of  by  some  as 
based  on  castes. 

In  some  respects  they  are,  according  to  European  ideas,  to 
be  classed  as  among  the  lowest  types  of  mankind.  They  went 
naked  and  ate  human  flesh.  Yet  they  recognized  govern- 
mental authority  and  rights  of  property.  These  were  upheld 
by  intricate  religious  or  superstitious  observances  of  taboos, 
which  made  sacred  to  the  use  of  the  king  all  things  which  he 
touched  and,  lest  the  property  of  the  subject  should  become  so, 
forbade  him  to  use  anything  but  his  own.  With  tiiem,  as 
with  all  savages  in  moderate  climates,  the  body  was  disfigured 

97 


gS  KVOLUTTON  OF  rxOAT-RNMENTS  AND  LAWS 

for  ornament,  and  the  idea  of  making  clothing  for  comfort 
does  not  appear  to  have  suggested  itself.  Owing  to  the  small 
size  of  the  islands  and  the  distance  of  one  from  another,  the 
authority  of  a  king  seldom  extended  far  and  the  number  of 
people  under  one  soereign  was  necessarily  small  in  compari- 
son with  even  the  larger  African  despotisms.  Still  it  was 
not  uncommon  for  a  king  to  rule  a  whole  group  of  islands. 
New  Zealand  affords  a  comparatively  wide  field,  but  does 
not  seem  to  have  developed  a  higher  type  of  government. 
Numerous  chiefs  having  little  real  power  led  the  people  in 
their  wars.  Having  no  money  there  were  no  taxes,  but  there 
were  slaves.  Having  no  knowledge  of  the  use  of  letters  they 
had  no  written  laws,  but  their  customs  and  superstitions, 
taught  orally,  were  quite  complicated.  There  was  little  basis 
for  commerce,  as  the  products  of  all  the  neighboring  islands 
were  substantially  alike,  and  the  fish  of  the  sea  were  equally 
accessible  to  all.  Manufacturing  was  mostly  limited  to  build- 
ing huts,  boats  and  making  weapons  and  fishing  tackle.  The 
similarity  of  the  people  and  their  customs  on  so  many  islands, 
so  remote  from  each  other,  is  very  striking.  While  on  the 
continents  tribes  differing  radically  in  language,  customs, 
character  and  appearance  are  often  found  in  close  proximity 
to  each  other,  the  people  of  Hawaii  and  New  Zealand,  though 
separated  by  sixty  degrees  of  latitude,  seem  clearly  of  the 
same  race. 

As  with  nearly  all  the  lower  races  the  women  bore  the  heav- 
iest burdens.  The  taboo  prohibited  her  from  partaking  of  the 
flesh  of  pigs  and  fowls  and  from  feasts  of  human  flesh.  En- 
forced by  superstitious  fears  as  well  as  physical  force,  the 
taboo  operated  as  a  powerful  aid  to  the  authority  of  the  ruler 
and  exercised  a  wide  influence  on  the  conduct  of  the  people. 
It  was  in  effect  a  most  peculiar  system  of  laws,  having  little 
similarity  to  anything  found  in  continental  regions.  The 
taboo  of  the  king  or  chief  rendered  not  only  his  person  and 
property  sacred  but  even  his  name.  This  was  a  recognition 
of  his  divine  right  far  surpassing  that  of  European  kings. 
The  idea  of  the  sanctity  of  priests,  churches  and  sacred  places 
is  similar  onlv  in  a  slight  degree  to  the  idea  of  absolute  ex- 


PACIFIC  ISLANDS  99 

cliisiveness  imposed  by  the  taboo.  As  applied  to  the  matri- 
monial relation  the  wife  was  taboo  to  all  but  her  husband. 
For  savages  this  was  quite  a  close  approximation  to  the  idea 
of  the  sacredness  of  the  marriage  relation. 

The  inhabitants  of  the  Marquesas  Islands  at  the  time  of 
their  discovery  by  Captain  Cook  in  1774  are  estimated  to  have 
numbered  I50,0(X).  They  then  were,  and  still  are,  described 
as  remarkably  perfect  physical  specimens  of  men  and  women, 
yet  matrimonial  relations  were  so  lax  as  to  approximate  pro- 
miscuity. Children  were  affectionately  treated  by  all  without 
regard  to  relationship.  The  abundance  of  natural  food  prod- 
ucts and  climatic  relief  from  need  of  clothing  relieved  parents 
from  all  anxiety  about  their  support.  When  discovered  they 
are  said  to  have  been  exceptionally  free  from  disease  and 
physical  ailments  of  all  kinds.  The  Europeans  failed  to  induce 
them  to  adopt  their  civilization  and  modes  of  life,  but  succeeded 
in  introducing  their  vices  and  diseases  with  the  result  that  the 
whole  native  population  of  all  the  islands  is  now  estimated  at 
less  than  2,000,  many  of  whom  are  hopelessly  diseased.^  In 
New  Zealand,  Hawaii,  Tahiti  and  other  islands  contact  with 
Europeans  does  not  appear  to  have  been  quite  so  disastrous 
to  the  natives,  but  they  do  not  appear  anywhere  to  have  profited 
from  the  introduction  of  either  European  or  Asiatic  civiliza- 
tion. 

1  Jr.hn  W.  Church  in  National  Geographic  Magazine,  Vol.  XXVI,  No.  4. 


CHAPTER  IV 

Mexico 

The  governmental  systems  of  the  inhabitants  of  the  Mexi- 
can plateau  dillered,  not  merely  in  degree  of  development,  but 
radically  in  character,  from  the  tribal  organizations  and  con- 
federacies of  the  wild  races  of  the  north.  The  Tlascalans 
seem  to  have  retained  more  of  the  traits  and  characteristics 
prevailing  among  northern  tribes  than  their  more  numerous 
neighbors.  Prescott  speaks  of  Tlascala  as  a  republic,  but,  if 
such,  it  was  of  a  most  peculiar  sort.  The  principal  authority 
was  vested  in  four  chiefs,  each  of  whom  had  his  separate 
district,  parcelled  out  among  sub-chiefs,  who  held  by  a  tenure 
similar  to  that  of  the  feudatory  vassals  of  Europe,  and  were 
bound  to  render  military  service  to  their  chiefs,  as  well  as  to 
supply  their  tables.  The  affairs  of  the  general  government 
were  settled  by  a  council  consisting  of  the  four  principal  chiefs 
and  the  inferior  nobles.  The  domains  of  the  sub-chiefs  were 
parcelled  out  among  their  retainers,  who  were  bound  to  render 
them  like  service  as  that  they  gave  their  superiors.  The  bond 
of  union  appears  to  have  been  very  firm  and  was  well  main- 
tained. In  the  city,  order  was  preserved  by  a  municipal  police. 
Military  prowess  was  the  source  of  greatest  distinction,  and 
a  rank  corresponding  with  knighthood  was  conferred  on  those 
exhibiting  especial  merit.  The  lowest  order  of  people  appear 
to  have  been  held  in  a  condition  not  unlike  the  European 
peasants  of  feudal  times. 

The  darkest  aspect  of  Aztec  life  was  the  bloody  and  gloomy 
religion,  the  cruel  rites  of  which  constantly  characterized  the 
deity  as  savage,  remorseless  and  devoid  of  love  or  pity.  The 
custom  of  eating  human  flesh  is  only  reconcilable  with  the 
otherwise  high  state  of  civilization  attained,  as  an  ordinance 
of  their  horrible  superstition.  Their  war  god,  like  the  war 
gods  of  all  people  in  all  times,  taught  lessons  of  cruelty  and 
forbade  all  exhibitions  of  pity  or  kindness  toward  enemies. 


MEXICO  loi 

The  government  of  the  Aztecs  was  an  elective  monarchy. 
The  sovereign  was  selected  from  the  brothers  of  the  deceased 
monarch  or  in  default  of  them  from  his  nephews.  The  choice 
was  made  by  four  of  the  principal  nobles,  designated  for  that 
purpose  by  their  own  order  in  the  preceding  reign.  This  sys- 
tem appears  far  better  calculated  to  place  a  meritorious  prince 
on  the  throne  than  the  prevailing  system  in  modern  Europe, 
which  places  the  crown  arbitrarily  on  the  eldest  son  of  the 
deceased  monarch  without  regard  to  merit.  It  also  avoided 
the  necessity  for  a  protector  ruling  in  the  name  of  an  infant 
king,  for  among  those  eligible  there  would  seldom  fail  to  be 
an  adult.  The  electors,  taken  from  the  leading  men  of  the 
nation,  were  familiar  with  the  character  of  all  the  princes  and 
in  a  position  to  make  the  best  possible  selection.  This  system 
isjioubtless  due  to  the  democratic  ideas  which  prevailed  among 
the  aborigines  of  America,  and  to  their  settled  custom  of 
awarding  power  and  leadership  only  to  such  as  exhibited 
capacity  for  it.  The  results  fully  demonstrated  its  wisdom, 
for  their  kings  were  men  of  conspicuous  ability.  The  king 
was  not  only  the  chief  executive  and  commander-in-chief  of 
the  army,  exercising  direct  authority  over  the  principal  nobles, 
who  were  required  to  render  him  personal  service  at  his 
palace  and  in  his  body  guard,  but  he  also  exercised  the  legis- 
lative function.  This  he  did  in  a  manner  far  in  advance  of 
the  methods  of  African  and  many  Asiatic  despotisms.  The 
laws  promulgated  were  registered  and  exhibited  to  the  people 
in  picture  writings.  They  were  of  course  adapted  to  the  con- 
ditions of  the  people,  and  show  evidences  at  the  same  time  of 
enlightened  policy  and  savage  cruelty.  Murder  and  adultery 
were  punished  with  death.  Thieves  were  either  enslaved  or 
put  to  death.  Among  capital  offences  were  numbered  re- 
moving the  boundaries  of  anothers  land,  altering  the  estab- 
lished measures,  and  misconduct  of  guardians  in  dealing  with 
the  property  of  their  wards.  Prodigals  and  drunkards  were 
severely  punished.  The  marriage  relation  was  clearly  com- 
l)rehended  and  its  sacredness  recognized  and  protected.  Di- 
vorces could  only  be  obtained  by  decree  of  a  court  having 
jurisdiction  solely  of  domestic  affairs,  after  a  full  and  patient 
hearing  of  the  parties. 


102  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

Slavery  existed  among  them,  but  in  the  least  objectionable 
form  in  which  it  has  existed  anywhere.  Its  subjects  were 
prisoners  of  war,  who  however  were  almost  invariably  sacri- 
ficed rather  than  enslaved,  criminals,  public  debtors  and  poor 
persons  who  sold  themselves  or  their  children.  The  services 
to  be  exacted  were  limited  with  precision.  The  slave  was 
allowed  to  have  his  own  family  and  property,  even  other 
slaves.  His  children  were  free.  There  was  no  such  thing  as 
hereditary  slavery,  and  sales  of  slaves  were  rare.  The  sepa- 
ration of  the  judicial  power  from  the  executive  and  legislative 
evinces  a  comprehension  of  the  principles  of  good  government 
hardly  to  be  looked  for.  Over  each  of  the  principal  cities  and 
its  tributary  country  there  was  a  supreme  judge,  appointed  by 
the  king,  but  holding  his  office  for  life.  He  had  jurisdiction 
in  both  civil  and  criminal  causes.  There  was  an  inferior 
court  in  each  province,  composed  of  three  members,  having 
concurrent  jurisdiction  in  civil  causes.  In  criminal  cases  an 
appeal  lay  to  the  supreme  judge.  Besides  these  there  were 
inferior  magistrates  throughout  the  country,  chosen  by  the 
people  of  the  districts  and  having  jurisdiction  in  minor  causes. 
There  were  also  inferior  censors,  elected  by  the  people,  whose 
duty  it  was  to  watch  over  a  certain  number  of  families  and 
report  any  infraction  of  the  laws.  In  Tezcuco  a  general  meet- 
ing of  all  the  judges  throughout  that  kingdom,  presided  over 
by  the  king,  was  held  every  eighty  days  at  the  capital  for  the 
.determination  of  causes  of  first  importance.  This  general 
court  also  acted  as  a  grand  council  of  state.  For  a  judge  to 
receive  a  bribe  was  punishable  with  death.  The  judges  were 
supported  from  a  part  of  the  produce  of  the  crown  lands  set 
apart  for  that  purpose.  They  wore  official  robes  and  worked 
full  days.  Officers  corresponding  to  sheriffs  and  bailiffs  were 
in  attendance  to  preserve  order,  summon  parties  and  wit- 
nesses. Lawyers  do  not  appear  to  have  been  in  favor  and 
are  not  mentioned  in  connection  with  the  proceedings  of  the 
courts.  In  criminal  causes  the  accused  was  allowed  to  testify. 
The  testimony  and  proceedings  were  taken  down  by  the  clerk 
in  hieroglyphical  painting  and  delivered  to  the  court. 

In  the  art  of  levying  taxes,  as  in  all  other  branches  of  the 


MEXICO  103 

science  of  government,  the  Aztecs  were  far  in  advance  of  all 
savages.  Besides  the  revenue  from  crown  lands,  services  in 
building  the  kings  palaces  and  buildings  were  exacted  from 
laborers  dwelling  in  the  adjacent  territory.  Tribute  in  kind 
was  required  from  farmers  and  manufacturers,  and  the  table 
of  the  monarch  and  his  retainers  was  abundantly  supplied  by 
his  subjects.  His  granaries  were  filled  with  corn  and  his 
warehouses  with  cotton  cloths  and  feather  robes,  arms,  armor 
and  utensils  collected  by  his  tax  gathers  from  all  parts  of  the 
empire.  In  fact  every  variety  of  product  for  use  or  ornament 
was  collected  for  the  king. 

xA.ny  description  of  the  Mexican  government  which  ignores 
the  priesthood  leaves  out  the  most  characteristic  part.  The 
influence  of  the  priests  on  the  policy,  as  well  as  on  the  man- 
ners and  morals  of  the  people,  was  of  first  importance.  The 
chief  priests  were  not  only  at  the  head  of  a  vast  religious 
establishment,  numbering  thousands  of  inferior  members,  but 
at  the  same  time  superintended  the  educational  system  of  the 
empire  and  exercised  a  most  potent  influence  on  the  policy  of 
the  king.  To  supply  the  thousands  of  human  victims,  who 
were  sacrificed  during  each  year  to  their  cruel  gods,  it  was 
necessary  to  wage  war  and  bring  in  captives.  At  the  behest 
of  the  priests  the  monarch  was  often  influenced  to  put  the 
armies  into  the  field.  Thus  the  empire  was  extended,  at  the 
expense  of  neighboring  tribes,  and  victims  were  supplied  for 
the  sacrificial  stone. 

At  the  head  of  the  religious  order  were  two  priests  chosen 
by  the  king  and  principal  nobles.  Below  them  were  others  of 
various  ranks  and  functions  in  all  the  towns  of  the  empire, 
forming  a  very  numerous  body.  Their  teocallis  or  temples,  in 
great  number  and  many  of  them  of  vast  size,  were  thickly 
scattered  about  the  cities.  On  the  top  of  the  terraced  mounds 
of  earth,  on  which  the  temple  proper  stood,  the  victim  was 
bound  on  the  sacrificial  stone,  and  in  sight  of  the  people  far 
and  near  the  priest  cut  his  breast  open  with  a  sharp  stone, 
tore  out  his  throbbing  heart,  held  it  bleeding  to  the  sun  and 
then  cast  it  at  the  feet  of  the  idol.  The  body  of  the  victim 
was  then  given  to  his  captor  to  be  served  xit  a  great  feast 
given  to  his  friends. 


104  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

In  some  respects  the  religious  societies  were  similar  to 
those  of  the  Catholic  Church.  They  held  and  tilled  great 
bodies  of  laud,  the  surplus  products  of  which  over  what  was 
consumed  by  them,  were  distributed  to  the  poor.  The  priests 
heard  the  confessions  of  the  people  and  granted  absolution 
for  their  misdeeds.  More  important,  however,  than  all  this, 
the  religious  houses  were  the  repositories  of  learning.  To 
them  was  due  the  credit  of  developing  the  art  of  picture  writ- 
ing, and  they  took  charge  of  the  instruction  of  the  young. 
By  this  means  their  doctrines  and  superstitions  were  given  a 
strong  and  lasting  hold  on  the  people,  especially  the  noljility, 
whose  children  were  trained  by  them. 

In  all  ages  and  among  all  people  public  ceremonies  have 
played  an  important  part  in  public  affairs  and  exercised  a 
I)owerful  influence  on  society.  Among  the  savage  tribes  of 
America,  feasts,  dances  and  formal  councils  have  afforded 
the  occasion  and  opportunity  for  gathering  the  sentiment  of 
the  tribe  on  public  questions,  for  arousing  their  passions  and 
starting  them  on  the  war  path.  In  imperial  Rome  the  culture 
and  innate  savagery  of  the  people  were  exhibited  at  the  circus. 
Nero  read  his  verses  above  the  arena  whose  sands  soaked  up 
the  blood  of  martyrs,  gladiators  and  wild  beasts.  The  Mexi- 
cans exhibited  no  less  strong  contrasts  in  their  public  cere- 
monies. Beautiful  flowers  in  tropical  profusion,  emblems  of 
peace  and  innocence,  adorned  the  processions  which  bore  vic- 
tims to  the  altars  of  the  gods.  Innocent  babes,  gaily  decked 
with  beautiful  robes  and  roses,  were  carried  to  their  doom 
by  chanting  priests.  At  the  same  time  that  observance  of 
these  most  cruel  and  savage  rites  was  inculcated,  the  priests 
taught  lessons  of  private  virtue  and  integrity,  obedience  to 
law,  industry  and  thrift.  It  may  be  remarked  that  even  their 
treatment  of  prisoners  was  an  improvement  on  that  prevailing 
among  the  savage  tribes  with  which  they  were  surrounded. 
The  act  of  cutting  open  the  breast  and  tearing  out  the  heart 
was  quickly  and  dexterously  performed,  and  the  suffering  of 
the  victim  soon  ended.  Let  it  not  be  forgotten  also,  while 
we  are  condemning  the  Aztecs  for  their  barbarity,  that,  at 
the  same  time,  the  most  Christian  nations  of  Europe  were 


MEXICO  105 

breaking  heretics  on  the  rack,  walHng  them  up  alive  in  tombs 
and  applying  all  the  tortures  which  iiendish  ingenuity  couLi 
devise,  for  the  purpose  of  preserving  intact  the  authority  of 
the  priests  and  teachers  professing  to  be  followers  of  the 
meek  and  lowly  Nazarene,  who  came  to  bring  peace  on  earth 
and  good  will  to  men.  Let  us  remember  that  our  Puritan 
ancestors,  even  at  a  later  day,  hung  and  burned  people  guilty 
only  of  the  imaginary  crime  of  witchcraft.  Let  us  bear  in 
mind  how  heads  were  lopped  off  in  England  and  elsewhere 
for  even  dreaming  the  death  of  the  king.  Though  so  ab- 
horrent to  our  ideas  and  feelings,  their  cannibalism  seems  to 
have  been  prompted  by  fanaticism  rather  than  foul  appetite. 

The  number  of  festivals  observed  by  the  Mexicans  was 
very  great.  Each  god  received  his  due  honors,  and  all  re- 
ligious ceremonies  were  conducted  by  the  priests  and  ob- 
served by  the  people  with  order  and  decorum.  It  is  curious  to 
note  that  under  the  more  ancient  civilization  of  the  Toltecs 
human  sacrifice  was  unknown.  Not  until  the  ascendency  of 
the  Aztecs  had  the  Inquisition  begun  its  bloody  career  on 
the  European  continent. 

The  domestic  regulations  of  the  Aztecs  were  neither  of  the 
best  nor  of  the  worst.  Polygamy  was  practiced  to  some  ex- 
tent, especially  among  the  rich,  but  was  not  general.  Slavery 
as  we  have  seen  existed  but  in  a  mild  form.  On  the  other 
hand  marriages  were  celebrated  with  much  ceremony,  con- 
tinency  on  the  part  of  both  sexes  was  strongly  inculcated,  and 
adultery  severely  punished.  Though  children  were  strictly 
ruled,  especially  while  under  instruction,  their  parents  re- 
garded them  with  affection.  Wives  were  not  slaves  to  their 
husbands,  but  were  their  companions  and  shared  with  them 
at  feasts  and  entertainments.  Divorce  implied  disgrace  and 
could  only  be  obtained  through  a  court  for  cause.  Guardians 
were  appointed  for  orphans  and  were  held  to  the  strictest 
account  in  the  management  of  their  estates.  The  j)rinci])al 
part  of  the  labor  of  the  fields  was  performed  by  the  men. 
Only  the  lighter  kinds  of  work  were  done  by  the  women,  and 
it  is  said  that  in  the  division  of  labor  the  weaker  sex  was 
quite  as  tenderly  regarded  as  in  most  parts  (»f  lMU"o])e  todaw 


io6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  educational  and  material  j)rogress  made  by  the  Mexi- 
cans was  such  as  might  naturally  be  expected  from  "their 
circumstances.  Considerable  skill  was  developed  both  in  agri- 
culture and  in  manufactures,  but  trade  hardly  passed  the  stage 
of  local  barter.  Regular  markets  were  held  in  the  cities  on 
every  fifth  day,  which  were  attended  by  a  great  concourse  of 
people.  Different  quarters  were  assigned  specially  to  each 
kind  of  commodities  and,  wdiere  barter  failed,  a  kind  of  cur- 
rency consisting  of  quills  of  gold  dust,  bits  of  T  shaped  tin 
and  bags  of  cacao  of  a  specified  number  of  grains  was  used. 
The  precious  metals  as  well  as  tin  and  copper  were  wrought 
with  much  skill  into  useful  and  ornamental  vessels  and  im- 
plements of  various  kinds.  The  fibre  of  the  maguey  and 
cotton  furnished  material  for  the  weavers,  of  which  they 
made  good  use,  and  the  richest  robes  were  made  with  feathers. 
Though  their  architecture  was  not  of  high  order,  the  teocallis 
and  palaces  were  of  great  size,  and  the  latter  of  considerable 
pretensions  for  comfort.  Post  routes  were  established 
throughout  the  empire,  with  stations  at  short  intervals,  and 
by  means  of  trained  messengers  dispatches  were  forwarded 
with  remarkable  speed.  Picture  writing  had  reached  a  stage 
of  deveKji)ment  that  furnished  means  of  communication  by 
writing  and  orders  from  the  king  were  so  transmitted  by  his 
messengers. 

The  most  marked  and  surprising  evidence  of  scientific 
progress  was  in  the  correctness  of  their  calendar,  in  which 
the  length  of  the  year  was  set  down  with  a  very  close  ap- 
proximation to  absolute  accuracy,  and  the  equinoxes  and 
solstices  were  correctly  noted. 

Domestic  animals  the  Aztecs  had  not.  They  w^ere  therefore 
total  strangers  to  the  shepherd  state.  The  buffaloes  of  the 
prairies  were  never  reduced  to  subjugation  by  them.  The 
care  with  which  they  made  provision  for  future  wants  in 
well  stored  granaries  and  warehouses  is  in  marked  contrast 
to  the  improvidence  of  northern  tribes.  In  their  pulque,  made 
from  the  sap  of  the  maguey,  they  had  an  intoxicating  drink 
of  which  they  were  excessi\'ely  fond,  but  of  which  only  the 
old  people  were  allowed  to  partake  freely.     The  diversity  of 


MEXICO  107 

climate  due  to  difference  in  elevation  afforded  a  most  diversi- 
fied and  prolific  ilora  which  they  studied  with  care.  Their 
gardens  afforded  both  useful  and  beautiful  plants  in  the  great- 
est variety. 

Authorities 

Prescott :     Conquest  of  Mexico. 
Encyclopaedia  Britannica. 


CHAPTER  V 

Peru 

The  governmental  system  of  Peru,  as  it  existed  prior  to  the 
Spanish  conquest,  is  unique  in  some  of  its  most  essential  fea- 
tures and  worthy  of  the  most  careful  study.  For  information 
with  reference  to  it  we  have  to  look  to  the  accounts  of  its 
fierce  and  fanatical  conquerors,  who  probably  failed  to  fully 
and  clearly  comprehend  the  spirit  of  it. 

The  native  tribes  of  South  America  were  generally  as  defi- 
cient in  organization  as  those  of  North  America.  The  Arau- 
canians,  inhabiting  the  country  to  the  south  of  Peru,  exhibited 
some  capacity  for  concerted  action  and  were  a  bold  and  vigor- 
ous race,  but  their  institutions  bore  no  resemblance  to  those 
of  Peru.  Why  a  great  and  strong-  government,  so  peculiar  in 
form,  should  have  developed  amidst  such  surroundings,  ap- 
parently with  nothing  to  suggest  the  well  digested  policy  pur- 
sued by  the  Incas  from  generation  to  generation,  is  an 
unsolved  riddle.  The  tradition  of  Manco  Capac  and  Mama 
Oello  Huaco,  children  of  the  Sun,  appearing  near  Lake  Titi- 
caca  and  proceeding  to  gather  the  fierce,  warlike  and  cannibal 
tribes  into  communities  and  teach  them  the  arts  of  peace  and 
the  duty  and  blessings  of  mutual  helpfulness,  is  as  charming 
as  anything  to  be  found  in  Greek  Mythology,  yet  fails  to  ac- 
count for  the  origin  of  the  Empire,  unless  we  are  ready  to 
concede,  as  did  the  Peruvian  people,  the  divine  origin  of  their 
rulers.  In  the  claim  of  a  divine  origin  for  kings  there  is 
nothing  new  or  uncommon. 

The  power  of  hereditary  despots  is  universally  exercised 
under  claim  of  a  divine  commission.  Generally  this  claim 
has  been  fortified  by  an  organized  priesthood,  sedulously 
teaching  the  people  to  view  the  king  with  awe  and  reverence 
as  the  representative  on  earth  of  the  Deity.  Inferior  officers 
civil  and  military  have,  through  various  motives,  also  instilled 

TOS 


PERU  109 

into  the  minds  of  the  multitude  an  idea  of  the  sacredness  of 
the  prince  and  the  divinity  of  his  commission  to  rule  over 
men.  The  government  of  Peru  was  a  monarchy,  hereditary 
in  the  male  line.  The  Inca  stood  at  the  head  of  both  the 
civil  and  religious  orders.  He  married  a  sister  of  the  full 
blood  for  his  queen,  whose  issue  succeeded  to  the  throne,  and 
also  had  numerous  other  wives.  All  descendants  of  the  Incas 
constituted  the  highest  order  of  nobility,  and  from  them  all 
the  great  offices  of  state  were  filled.  From  a  small  territory 
in  the  vicinity  of  Cuzco  the  dominion  of  the  Incas  was  grad- 
ually extended,  by  peaceful  methods  wherever  possible,  but 
by  war  when  necessary,  over  adjacent  tribes.  The  conquered 
people  were  never  exterminated,  but  became  subject  to  the 
same  regulations  as  other  subjects  and  received  like  protection. 
Their  caciques  constituted  an  order  of  nobility,  inferior  to 
that  of  the  blood  of  the  Incas,  and  exercised  some  authority 
over  the  tribes  to  which  they  belonged.  They  were  required 
to  visit  the  capital  and  allow  their  sons  to  be  educated  there, 
so  that  in  the  succeeding  generations  they  became  imbued 
with  the  principles  of  the  government.  The  members  of  the 
family  of  the  Inca  are  said  to  have  been  of  a  superior  type 
to  the  mass  of  subjects.  Whether  this  was  due  merely  to 
difference  in  mode  of  life  and  opportunities  for  development 
or  to  a  diversity  of  original  stock  cannot  be  very  satisfactorily 
answered.  Over  the  religious  order  stood  a  high  priest  or 
Villac  Vmu  as  he  was  called,  inferior  only  in  dignity  to  the 
Inca,  by  whom  he  was  appointed  from  his  near  kindred,  tc 
hold  the  office  for  life.  The  Villac  Vmu  appointed  to  all  the 
inferior  stations  of  the  order.  Those  officiating  about  the 
temple  of  the  Sun  at  Cuzco  were  exclusively  of  the  blood  of 
the  Incas,  as  were  also  the  high  priests  in  each  district  of  the 
empire,  but  ministers  in  provincial  temples  were  selected  from 
the  families  of  the  native  airacas.  All  members  of  the  Inca 
nobility  were  looked  up  to  with  veneration  as  belonging  to 
the  holy  order.  The  functions  of  the  priestly  order  related 
exclusively  to  service  in  the  temples  and  in  connection  with 
the  very  elaborate  feasts,  festivals  and  public  worship.  The 
Sun   was  the  principrd  deity  worshipped,   vvilli   a   small   share 


no     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  devotion  for  tlic  Moon,  his  sister  wife,  the  stars,  the  rain- 
how,  thunder  and  hj^htninj;-.  Hut  the  Incas,  Hke  the  ancient 
Greeks  and  Romans,  were  exceecHngly  tolerant  of  other  gods, 
and  also  had  their  Pantheon  in  which  were  set  ui)  the  images 
of  the  deities  of  all  the  conquered  tribes  of  the  empire.  Fol- 
lowing the  submission  of  a  tribe  worshipping-  a  peculiar  god 
or  idol,  the  image  was  at  once  promoted  and  took  its  place 
among  the  gods  at  Cuzco,  where  it  received  appro[)riate  hom- 
age at  the  expense  of  the  state.  Public  sacrifices  were  made 
at  the  great  festivals,  and  it  is  said  at  times  in  addition  to 
animals,  grain,  flowers  and  sweet  scented  gums,  children  and 
maidens  were  also  sometimes  offered  on  the  altar.  It  is  cer- 
tain, however,  that  human  sacrifices  were  rare,  and  it  is  even 
disputed  by  some  that  any  such  were  made.  The  "House  of 
the  Virgins  of  the  Sun"  at  Cuzco  was  filled  with  fifteen  hun- 
dred vestal  virgins  of  the  blood  of  the  Inca,  who  kept  the 
sacred  fires,  started  at  the  annual  feast  of  the  Rayini,  and 
wove  from  the  hair  of  the  vicuna  the  hangings  for  the  temples 
and  the  clothing  for  the  household  of  the  Inca.  Though 
called  Virgins  of  the  Sun  they  were  really  for  the  Inca,  who 
selected  such  of  them  as  he  pleased  for  his  seraglio.  Such  as 
were  chosen  were  kept  either  at  Cuzco  or  at  the  different  pal- 
aces throughout  the  empire.  In  case  he  chose  to  dispense 
with  any  of  these,  they  were  returned  to  their  former  homes, 
where  they  were  treated  with  marked  distinction  as  brides  of 
the  Inca.  If  guilty  of  any  loose  conduct  while  in  the  House 
of  the  Virgins,  however,  they  and  all  connected  with  them 
were  punished  with  death. 

The  emi)ire  of  Peru  was  divided  into  quarters,  to  each  of 
which  ran  one  of  the  four  great  roads  diverging  from  the 
capital.  Cuzco  was  likewise  divided  into  four  (piarters,  and 
the  people  of  each  tribe  or  district  residing  in  the  capital  lived 
in  the  cjuarter  nearest  their  native  place.  Each  of  these  four 
great  provinces  was  placed  under  a  viceroy,  who  ruled  with 
the  aid  of  one  or  more  councils  for  the  several  departments. 
The  viceroys  resided  some  of  the  time  at  the  capital,  where 
they  formed  a  council  of  state  to  the  Inca.  The  people  were 
divided  into  bodies  of  ten,  and  the  head  of  each  decade  was 


PERU  III 

responsible  for  their  conduct.  Above  these  were  divisions  into 
fifties,  hundreds,  five  hundreds  and  thousands,  with  an  officer 
having  supervision  at  the  head  of  each.  A  further  division 
into  departments  of  ten  thousand  people  was  also  made,  over 
each  of  which  was  placed  a  governor  of  the  blood  of  the  Inca. 

The  judicial  system  was  exceedingly  simple,  and  the  law's 
delays  found  no  place  in  it.  There  were  regular  courts  in 
each  town  and  community,  having  jurisdiction  of  petty  of- 
fenses, while  those  of  more  serious  character  were  heard  by 
superior  judges  or  governors  of  districts.  The  judges  were 
all  appointed  by  the  Inca  and  removed  at  pleasure.  They 
were  obliged  to  determine  every  suit  in  five  days  from  the 
time  it  was  brought,  and  there  was  no  appeal.  A  board  of 
visitors  traveled  over  the  kingdom,  inquired  into  the  conduct 
of  the  magistrates  and  punished  any  misconduct.  Inferior 
courts  were  required  to  make  monthly  returns  of  their  pro- 
ceedings to  the  superior  ones,  who  in  like  manner  reported  to 
the  viceroys. 

Theft,  adultery  and  murder  were  capital  offenses,  unless 
mitigating  circumstances  were  found.  Blasphemy  against  the 
Sun  and  malediction  of  the  Inca  were  punished  with  death, 
as  also  was  the  burning  of  a  bridge.  There  were  few  laws 
relating  to  property  rights  as  between  private  citizens,  for 
the  reason  that  the  general  policy  of  the  empire  left  no  room 
for  much  in  the  line  of  private  interests.  To  destroy  land- 
marks, burn  a  neighbor's  house  or  cut  off  his  water  supply 
was  a  serious  offense.  In  its  division  of  the  land  and  super- 
intendence of  all  the  business  of  the  people  is  exhibited  the 
most  marked  peculiarity  of  the  Peruvian  polity.  The  whole 
territory  of  the  empire  was  divided  into  three  parts,  one  for 
the  Sun,  one  for  the  Inca  and  the  other  for  the  people.  The 
proporti(jns  varied  according  to  circumstances.  The  lands 
of  the  Sun  supported  the  religious  establishments,  fed  the 
priesthood  and  supplied  all  things  needed  for  their  elaborate 
ceremonials.  From  that  of  the  Inca  the  royal  household  and 
all  the  needs  of  the  civil  and  military  est.iblishments  were 
supplied.  The  remainder  was  divided  in  c(|ual  shares  per 
capita  among  the  |)eoi)lc'.     The  (li\isinn  of  the  soil  was  re- 


112  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

newed  every  year,  and  the  share  assigned  to  each  household 
was  increased  or  diminished  according  to  the  number  in  the 
family.  The  only  distinction  allowed  was  in  favor  of  the 
lower  order  of  nobility,  who  were  given  a  larger  allowance. 
The  people  first  attended  to  the  cultivation  of  the  land  of  the 
Sun.  Next  they  tilled  the  lands  of  the  old,  the  sick,  the 
widow  and  orphan  and  the  soldiers  away  in  actual  service. 
They  were  then  allowed  to  attend  to  their  own,  each  by  him- 
self, with  a  general  obligation  to  be  mutually  helpful  in  case 
of  need.  Lastly  they  cultivated  the  lands  of  the  Inca,  all 
working  together  in  gala  costume  and  making  it  a  time  of 
jubilee  and  festivity.  The  crops  belonging  to  the  Sun  and  the 
Inca  were  gathered  and  placed  in  granaries  provided  for  the 
purpose. 

The  flocks  of  llamas  were  exclusively  the  property  of  the 
Sun  and  Inca  and  were  cared  for  by  shepherds  assigned  to 
that  task.  Great  numbers  of  them  were  slaughtered  for 
religious  festivals.  At  the  proper  time  they  were  sheared  and 
their  fleeces  deposited  in  the  public  magazines,  from  which 
the  wool  was  distributed  among  the  people  according  to  their 
needs,  and  spun  and  woven  by  the  women,  who  were  educated 
to  that  end.  Cotton  however  was  raised  on  the  lowlands  and 
used  for  clothing  by  the  people  in  the  hot  districts.  The 
people  were  also  required  to  weave  for  the  Inca,  and  officers 
appointed  for  the  purpose,  distributed  the  material  and  di- 
rected the  work.  Not  only  did  they  see  to  the  proper  use  of 
the  material  furnished  for  the  use  of  the  Inca,  but  also  to 
that  for  the  people  as  well,  and  care  was  taken  that  nothing- 
should  be  wasted  or  misapplied.  The  great  majority  of  the 
people  were  husbandmen,  who  supplied  their  wants  from  the 
lands  assigned  to  them.  There  was  need  however  of  hands 
to  work  the  mines,  which  all  belonged  to  the  Inca,  and  to 
manufacture  the  utensils  and  ornaments  of  his  palace  and  the 
temples.  For  these  a  sufficient  number  were  selected  and 
specially  instructed  in  the  arts.  For  the  construction  of  pal- 
aces, temples,  roads  and  other  public  works,  laborers  were 
drawn  from  the  various  provinces  for  stated  periods  of  service 
and  maintained  at  the  public  expense  while  so  employed.    The 


PERU  113 

distribution  of  burdens  was  fair  and  equal,  so  that  no  person 
was  crushed  by  the  pubHc  exaction. 

An  accurate  census  of  the  inhabitants  was  made  and  re- 
turned every  year,  and  registers  were  kept  of  all  births  and 
deaths.  At  intervals  a  general  survey  of  the  whole  country 
was  made,  showing  the  amount  and  quality  of  the  land,  and 
the  purposes  to  which  it  was  adapted.  This  afforded  the  basis 
for  the  division  of  the  land,  the  apportionment  of  public  work, 
the  levy  of  soldiers  and  the  distribution  of  supplies.  Distri- 
butions among  the  provinces  and  districts  were  determined  by 
superior  officers  and  particulars  were  attended  to  by  the  local 
authorities.  Thus  ancient  Peru  affords  probably  the  only 
instance  on  a  large  scale  of  a  government  mainly  devoted  to 
the  regulation  of  the  business  affairs  of  the  people  with  a 
view  to  promoting  the  general  comfort  and  prosperity  of  all. 
The  fundamental  ideas  of  their  system  were,  that  all  should 
work  industriously  yet  not  beyond  the  limits  of  endurance, 
that  each  should  be  provided  with  the  necessaries  of  life, 
should  marry,  rear  children,  live  virtuously  and  honestly.  The 
vast  and  magnificent  public  works  and  the  great  stores  of 
grain  and  manufactured  stuff  found  by  the  conquerors  bear 
testimony  to  succeessful  employment  of  the  people  in  indus- 
trial pursuits  and  to  excellent  economy  in  the  use  of  the 
products  of  their  labors.  The  Spaniards  reported  finding 
grain  enough  to  last  several  years  in  their  granaries  and  vast 
quantities  of  woolen  and  cotton  stuff,  as  well  as  implements 
and  utensils  of  various  kinds,  in  their  warehouses.  The 
stores  of  grain  from  the  lands  of  the  Sun  and  Inca  were  not 
wasted,  but  in  time  of  need  were  drawn  on  to  supply  the  wants 
of  the  people. 

The  government  was  a  great  business  establishment  calling 
for  a  vast  amount  of  patient  attention  to  details.  The  no- 
bility, while  enjoying  superior  advantages,  were  not  mere 
drones  nor  intriguing  politicians.  Each  had  his  duties  to  per- 
form for  the  public.  The  government  not  only  directed  all 
warlike  undertakings  and  all  works  regarded  by  Europeans  as 
public,  liiit  also  filled,  to  some  extent,  the  place  of  the  mer- 
chants and  oi)crators  of  mines  and  factories.     Tn  considering 


114  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

what  was  acconiplishcd  by  this  system  it  must  be  borne  in 
mind  that  all  was  done  without  the  aid  of  steam,  electricity  or 
labor-saving  machinery  of  any  kind,  that  the  use  of  iron 
was  unknown,  and  that  they  were  wholly  unacquainted  with 
letters  or  even  with  the  rudiments  of  picture  writing;  yet  they 
kept  more  accurate  records  of  the  people  and  resources  of  the 
empire  than  were  kept  by  any  contemporaneous  European  na- 
tion. This  was  done  by  means  of  the  quipu,  one  of  their 
peculiar  devices.  It  was  a  cord  about  two  feet  long  composed 
of  different  colored  threads,  tightly  twisted,  from  which 
smaller  threads  were  suspended  like  a  fringe.  The  colors  de- 
noted different  objects  or  ideas  as  yellow,  gold;  white,  silver; 
red,  war;  white,  peace.  Knots  tied  in  the  threads  indicated 
numbers,  and  by  different  combinations  of  threads  and  knots 
numbers  to  any  limit  could  be  expressed.  All  calculations 
were  made  by  use  of  the  quipu  and  with  great  accuracy.  Dif- 
ferent officers  made  reports  to  the  government  on  different 
sul)jects.  One  had  charge  of  the  revenues  and  reported  the 
stores  of  various  kinds  placed  in  the  public  granaries  and 
warehouses,  and  the  raw  material  distributed  among  the  la- 
borers. Another  made  report  of  births,  deaths,  marriages, 
number  of  men  capable  to  bear  arms  and  other  de- 
tails relating  to  population.  All  returns  were  forwarded  an- 
nually to  Cuzco,  where  they  were  inspected  and  used  by  the 
proper  officers.  These  knotted  skeins  of  many  colored  thread 
afforded  com[)lete  statistics  of  the  material  resources  and  busi- 
ness affairs  of  the  entire  kingdom.  The  system  has  advantages 
over  reports  in  written  or  printed  words.  There  is  no  chance 
to  talk  for  the  purpose  of  concealing  information.  The 
threads  and  knots  had  definite  and  certain  meanings,  and  told 
their  story  once  and  for  all. 

Along  the  great  highways,  which  equalled  Rome's  great 
roads  in  construction,  were  placed  at  intervals  of  ten  or  twelve 
miles  tamhos  for  the  accommodation  of  the  Inca  and  those 
who  traveled  on  public  business.  Some  of  these  were  very 
large  and  designed  to  lodge  the  army  when  marching  through 
the  country.  A  complete  system  of  posts  was  established  along 
all  great  routes.     Small  buildings  were  erected  at  intervals 


PERU  115 

cf  less  than  five  miles,  in  which  were  stationed  a  number  of 
trained  runners,  called  chasqiiis,  whose  duty  it  was  to  carry 
dispatches  and  articles  for  the  use  of  the  Inca  and  his  court. 
By  this  means  urgent  messages  were  carried  at  the  rate  of 
one  hundred  and  fifty  miles  a  day,  and  the  Inca  was  kept  con- 
stantly informed  of  what  was  taking  place  in  the  most  re- 
mote parts  of  the  empire.  The  military  system  and  policy 
were  on  an  equally  orderly  and  advanced  plane.  Regular 
drill  took  place  in  every  village  twice  or  thrice  a  month.  In 
case  of  war  levies  were  drawn  from  each  province  and  divided 
into  companies  and  battalions  under  proper  officers,  and  the 
whole  army  was  led  by  the  Inca  or  one  of  his  blood.  The 
troops  moved  rapidly  along  the  great  roads  and  found  ample 
provision  for  their  support  at  every  camping  place.  Like 
Rome  in  her  palmy  days,  Peru  steadily  extended  her  dominion 
by  peaceful  negotiation,  persuasion  and  inducements  to  the 
chiefs  and  leaders  of  neighboring  people  wherever  possible, 
but  by  arms  when  other  means  failed.  Thus  the  empire  spread 
from  its  original  small  district  about  Cuzco  northward  beyond 
Quito  to  about  two  degrees  north  latitude  and  south  to  about 
thirty-seven  degrees  south  latitude,  and  from  the  Pacific  on 
the  West  to  an  unknown  boundary  on  the  eastern  slope  of 
the  Andes.  Each  conquered  district  was  carefully  surveyed 
and  the  lands  apportioned  on  the  same  principles  as  were  ap- 
plied in  other  parts  of  the  empire.  The  people,  especially  the 
chiefs,  were  taught  to  speak  the  Quinchua  tongue,  the  lan- 
guage of  the  court,  and  for  this  purpose  teachers  were  sent 
into  the  newly  acquired  province.  In  case  of  serious  disaf- 
fection or  continued  turbulence  on  the  part  of  the  inhabitants 
of  any  district  the  people,  or  a  considerable  portion  of  them, 
were  transplanted  into  some  distant  province,  where  they  were 
surrounded  by  subjects  of  tried  fidelity,  and  their  places  filled 
by  the  displaced  population. 

While  polygamy  was  allowed  to  the  Inca,  who  took  to  him- 
self wives  and  concubines  in  great  multitude,  and  also  to  the 
great  nobles,  and  while  the  Inca  took  one  of  his  own  sisters 
for  his  queen,  the  comnion  man  was  restricted  to  one  wife, 
to  be  selected  from  the  community  in  which  hv  lived,  but  was 


Ii6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

forbidden  to  take  his  sister.  Marriage  was  compulsory.  On 
a  stated  day  in  each  year  all  those  of  marriageable  ages,  males 
of  not  less  than  twenty-four  and  females  of  eighteen  to 
twenty,  were  called  together  in  the  great  squares  of  the  towns 
and  villages.  The  Inca  was  master  of  ceremonies  in  the  as- 
sembly of  his  own  kindred  and  married  the  different  [)airs  by 
taking  their  hands  and  placing  one  within  the  other  and  de- 
claring them  man  and  wife.  The  same  ceremony  was  per- 
formed for  the  common  people  by  the  local  magistrates.  The 
consent  of  the  parents  was  required.  A  dwelling  was  pre- 
pared for  each  couple  by  the  district,  and  their  share  of  the 
land  was  set  off  to  them.  The  simple  marriage  ceremony  was 
followed  by  general  festivities  among  the  friends  of  the 
parties,  which  lasted  several  days,  and  as  all  the  weddings 
for  the  year  took  place  on  the  same  day,  nearly  the  whole 
population  of  the  empire  joined  in  the  jubilee.  It  is  asserted 
that  there  was  not  a  prostitute  in  the  whole  empire.  What 
rules  obtained  with  reference  to  the  remarriage  of  widows  and 
widowers  the  writer  has  not  been  able  to  ascertain.  The 
general  policy  seems  to  have  been  to  promote  industry  and 
virtue  by  providing  all  with  homes  and  family  ties. 

The  educational  system  was  based  on  the  theory  that  each 
should  be  taught  that  and  that  only  which  pertained  to  liis 
particular  calling.  A  favorite  maxim  of  Tupac  Inca  Yupan- 
quin  is  said  to  have  been  that :  "Science  was  not  intended  for 
the  people;  but  for  those  of  generous  blood.  Persons  of  low 
degree  are  only  puffed  up  by  it,  and  rendered  vain  and  arro- 
gant. Neither  should  such  meddle  with  the  affairs  of  gov- 
ernment, for  this  would  bring  high  ofifices  into  disrepute  and 
cause  detriment  to  the  state." 

The  members  of  the  numerous  families  allied  by  blood  to 
the  Incas  were  educated  by  their  amantas  or  wise  men  at  semi- 
naries provided  for  the  purpose.  They  were  instructed  with 
especial  reference  to  the  stations  they  were  to  occupy.  They 
were  carefully  taught  the  principles  of  government  and  the 
laws  they  were  to  administer.  Those  who  were  to  assume 
priestly  functions  were  specially  instructed  in  religious  rites. 
All  were  taught  to  speak  the  court  language  in  its  purity  and 


PERU  117 

learned  the  science  of  the  quipus,  which  at  the  same  time 
covered  the  field  of  mathematics  and  supplied  the  place  of 
written  records.  Historical  traditions  were  transmitted  orally, 
supplemented  by  the  data  recorded  by  means  of  the  quipus. 
By  this  method  a  considerable  degree  of  accuracy  could  be 
preserved  in  a  tale  passed  down  through  many  generations. 
The  use  of  the  quipii  would  seem  capable  of  indefinite  exten- 
sion and  elaboration,  for  threads  of  different  colors  and 
lengths  knotted  and  combined  in  various  ways  would  possess 
as  great  capacity  for  expressing  ideas  as  arbitrary  characters 
marked  on  paper.  The  use  of  them  appears  less  convenient, 
but  it  is  evident  that  the  possibilities  of  communication  by 
means  of  them  are  unlimited.  The  number  of  primary  threads 
for  characters  could  be  multiplied  indefinitely  and  moulded 
to  use  in  the  same  manner  as  letters  are  now  used.  It  seems, 
however,  that  the  Peruvians  had  not  developed  the  system  to 
this  extent,  but  used  the  threads  as  symbols  of  things  and  to 
a  limited  extent  of  abstract  ideas. 

The  education  of  the  lower  orders  was  not  wholly  neglected. 
Those  engaged  in  agriculture  were  instructed  in  the  cultiva- 
tion of  such  products  as  were  adapted  to  the  lands  to  which 
they  were  assigned.  The  varieties  of  climate  due  to  differ- 
ence in  altitude,  ranging  from  tropical  heat  along  the  sea 
coast  to  perpetual  snow  on  the  mountain  tops,  afforded  a 
great  diversity  of  products  in  neighboring  districts.  Ban- 
anas, manioc  and  other  tropical  products  on  the  hot  lands, 
Indian  corn,  maguey,  cuca,  etc.,  a  little  higher  up,  potatoes 
and  qiiinoa,  a  grain  resembling  rice,  in  the  cool  mountain 
regions,  and  still  higher  pasture  lands  for  the  llamas,  wild 
sheep  and  other  wild  animals.  All  the  animals,  wild  as  well 
as  domesticated,  belonged  to  the  Inca.  At  the  annual  great 
hunts  there  was  a  general  muster  of  the  people  of  the  district 
to  round  up  all  within  the  hunted  territory.  Beasts  of  prey 
were  killed,  but  discrimination  was  used,  and  only  the  male 
deer  and  the  inferior  sort  of  sheep  were  killed  for  food. 
The  rest  of  the  slicep  were  sheared  .'uid  turned  loose  again. 
Of  all  the  j)eople  on  the  American  continent  the  Peruvians 
akjne  kepi   domestic   animals,   and   they  onl\-   llamas,   aljjacas 


ii8  EVOLUTION  OF  GOVRRNAIKNTS  AND  LAWS 

and  otlier  animals  of  the  sheep  kind.  The  Hamas  were  used 
as  pack'  carriers.  In  tilHng  the  soil  the  natives  had  no  assist- 
ance from  draft  animals.  All  was  done  with  human  strength. 
The  value  of  manures  was  well  understood,  and  extensive  use 
was  made  of  the  guano  deposits  on  the  islands  near  the  coast. 
Vast  labor  was  expended  in  terracing  the  steep  mountain  sides 
and  for  the  purposes  of  irrigation,  aqueducts,  which  would  do 
credit  to  any  country,  were  constructed  of  closely  fitted  and 
cemented  stone.  One  traversing  the  district  of  Condesuyu 
extended  over  four  hundred  miles.  In  the  execution  of  these 
works  the  usual  engineering  difficulties  were  met  and  success- 
fully overcome,  rivers  were  bridged,  mountains  tunneled  and 
the  waters  of  the  lakes  and  reservoirs  in  the  highlands  stored 
and  distributed  along  the  slopes  where  moisture  was  most 
needed.  In  spots  where  there  was  lack  of  rainfall  and  no 
means  of  irrigation,  pits  were  dug  to  a  considerable  depth  to 
take  advantage  of  the  moisture  from  below,  and  by  rich 
manuring  crops  were  raised  in  these  cellar  like  gardens. 
While  the  implements  of  agriculture  were  of  the  most  primi- 
tive kind,  and  no  aid  was  obtained  from  draft  animals  or 
machinery,  the  results  were  satisfactory  and  Peru  was  pre- 
eminently a  land  of  plenty.  These  results  flowed  from  the 
governmental  policy  and  as  a  result  of  the  education  and  di- 
rection imparted  by  the  orders  of  the  Inca.  The  compara- 
tively small  numbers  engaged  in  mechanical  arts  were  also 
instructed  in  their  callings  and,  while  the  use  of  iron  was 
unknown,  skillful  use  was  made  of  gold,  silver,  copper,  and 
tin.  Tools  nearly  equalling  steel  in  hardness  were  made  of 
copper  alloyed  with  tin.  The  art  of  weaving  was  well  ad- 
vanced, though  by  primitive  methods.  In  cutting  and  moving 
granite  and  other  hard  stones  they  were  well  skilled.  By 
what  process  the  immense  blocks,  containing  hundreds  and 
even  thousands  of  cubic  feet  each,  were  taken  from  their 
beds  in  the  quarries,  moved  long  distances  and  placed  in  the 
temples  and  palaces  is  unexplained. 

Their  architecture  is  said  to  be  wanting  in  grandeur  and 
finish.  They  constructed  no  high  buildings.  Those  even  of 
greatest  pretensions  rarely  had  a  second   story.     The  walls 


PERU  119 

were  massive  but  without  openings  other  than  doors,  and  the 
roofs  were  often  thatched.  This  may  not  be  due  altogether 
to  a  want  of  boldness  of  conception,  for  the  frequency  of 
earthquakes  rendered  this  style  best  adapted  to  safety  and 
permanence.  In  bridging  streams  and  chasms  they  exhibited 
both  ingenuity  and  skill.  Suspension  bridges  two  hundred 
feet  or  more  in  length  were  found  by  the  Spaniards  and  con- 
tinued in  serviceable  condition  for  many  years.  They  were 
supported  by  ropes  stretched  between  stone  buttresses.  Though 
the  products  of  Peru  were  sufficiently  diverse  to  afford  a  basis 
for  much  internal  commerce,  and  though  gold  and  silver  in 
great  abundance  were  produced  and  used  in  ornamenting  the 
temples  and  making  vessels  and  implements  for  use  and  orna- 
ment for  the  Inca,  no  such  thing  as  money  or  any  substitute 
for  it  was  known.  Fairs  held  three  times  a  month  in  suitable 
places  afforded  at  the  same  time  a  holiday  and  opportunity 
for  exchanging  products  by  direct  barter. 

Ancient  Peru  presents  an  instance  of  a  thoroughly  organ- 
ized state,  standing  alone  on  a  continent  filled  with  scattered 
tribes  of  savages,  but  built  from  material  similar  to  the  chaotic 
mass  filling  the  balance  of  the  land.  Its  policy  was  clearly 
defined  and  steadily  and  successfully  carried  out.  It  brought 
order  out  of  chaos.  It  waged  war  on  its  borders,  that  the 
area  of  internal  peace  might  be  enlarged.  It  exacted  industry 
and  gave  security  and  plenty  in  return.  It  enforced  morality 
and  exacted  strict  obedience  to  authority  and  observance  of 
the  forms  of  a  religion  exceptionally  free  from  gross  super- 
stitions and  elevated  in  tone  for  a  people  so  environed.  No 
other  known  government  ever  succeeded  so  entirely  in  or- 
dering the  private  affairs  and  daily  life  of  its  people,  and  no 
other  dynasty  labored  so  persistently  to  guard  the  people  from 
want.  Without  any  aid  by  suggestion  from  other  growing 
civilizations,  it  evolved  a  system  based  on  fundamental  ideas 
so  clear,  strong  and  well  enforced  as  to  challenge  the  wonder 
and  admiration  of  all. 

It  has  been  a  source  of  wonder  to  some  that  the  wants 
of  the  masses  could  be  so  well  supplied  when  the  burden  rested 
on  the  toilers,   not  only  of  cultivating  their  own   lands  and 


120  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

supplying  their  own  needs,  but  also  of  tilling  the  lands  of  the 
Inca  and  the  Sun  as  well,  besides  building  and  maintaining  all 
public  works  and  performing  military  service.  We  have  no 
exact  data  showing  the  numbers  of  the  nobility,  priesthood 
and  inferior  officials  or  of  the  common  people.  Probably  the 
ratio  of  privileged  classes  to  the  whole  population  was  some- 
what higher  than  in  most  of  the  more  advanced  nations  of 
modern  times.  But  the  ratio  of  the  whole  number  of  offi- 
cials, priests  and  soldiers  to  the  total  population  was  much 
less  than  in  the  military  states  of  Europe.  Another  element 
of  great  importance,  which  seems  to  be  overlooked,  is  the 
entire  absence  in  Peru  of  those  classes  who  live  in  luxury 
from  rents  of  land,  interest  on  money  and  other  forms  of 
income  from  property.  In  all  modern  states  these  constitute 
the  most  favored  portion  of  the  people,  and  the  cost  of  their 
maintenance  is  greatest.  As  they  render  no  service  in  return 
for  their  incomes,  whatever  they  consume  is  a  net  loss  to 
the  producers.  Still  another  and  more  numerous,  though  per- 
haps less  costly  class,  found  in  all  the  most  advanced  modern 
nations,  is  the  idle  poor,  who  are  either  unable  or  unwilling 
to  find  employment.  The  Inca  found  useful  employment  for 
all.  The  judges  administered  the  law  and  paid  advocates 
were  unknown. 

The  system  of  government  was  so  thorough  that  there  was 
no  room  for  a  complicated  code  of  laws.  Each  was  required 
to  do  his  appointed  share  of  labor  and  given  his  due  return. 
His  assurance  against  want  in  times  of  misfortune  lay  in  the 
public  storehouses  and  the  law  which  required  his  neighbors 
to  till  his  field,  when  he  was  unable  to  do  so.  There  were 
no  deeds,  mortgages,  leases  or  other  contracts  relating  to 
land,  for  each  had  the  use  but  not  the  ownership  of  the  soil. 
There  were  no  notes  or  other  obligations  for  money,  for  there 
was  no  money.  There  were  no  slaves  nor  contracts  of  hire. 
All  served  the  Inca  and  helped  each  other.  There  were  no 
taxes  to  be  raised  from  a  sale  of  crops.  The  produce  of  the 
Inca's  lands,  mines  and  flocks  supported  the  government  and 
the  lands  of  the  Sun,  the  priesthood.  Neither  the  tax  gath- 
erer, the  usurer  nor  the  landlord  ever  came  to  seize  and  sell 


PERU  131 

the  newly  ripened  harvest.  The  government  was  never  a 
debtor,  nor  yet  wanted  means  to  arm  and  equip  soldiers,  build 
palaces,  temples,  roads,  bridges  and  other  public  works. 

Authorities 
W.  H.  Prescott:    History  of  the  Conquest  of  Peru. 
C.  Enoch :     Peru. 
Encyclopaedia  Britannica. 


CHAPTER  VI 


Egypt 


Tt)  the  records  made  by  themselves  only  vvc  must  look  for 
accomits  of  the  earliest  civilization  of  the  Egyptians.  Of  ne- 
cessity therefore  the  first  to  be  known  is  concerning  a  people 
already  sufficiently  advanced  to  have  developed  a  written  lan- 
guage, except  as  it  may  be  carried  back  by  traditions  passed 
down  from  earlier  times  and  subsequently  recorded.  Though 
the  surroundings  of  the  valley  of  the  Nile  suggest  conditions 
under  which  a  race  of  people  might  have  developed  in  peace, 
secure  against  attacks  from  external  enemies,  history  fails 
to  reach  such  a  time.  Whether  the  ancient  Egyptians,  whose 
descendants  still  occupy  the  country,  originated  in  Egypt  or 
elsewhere  cannot  be  answered  from  any  reliable  evidence. 
Like  most  people,  they  begin  their  account  of  their  nation 
with  a  mythical  line  of  supernatural  rulers,  and  a  time  when 
the  gods  resided  on  earth  and  gave  mortals  the  benefit  of 
their  instruction.  If  the  truth  be  that  the  human  race  is  the 
product  of  evolution  from  the  lower  to  the  higher,  the  ad- 
vancement has  not  been  steady  and  continuous  with  any  people 
of  whom  we  have  a  long  history.  Times  of  marked  intel- 
lectual activity  as  well  as  of  moral  advancement  have  been 
followed  by  periods  of  torpor  and  degradation.  It  may  there- 
fore well  happen,  that  at  one  period  the  people  may  look  back 
to  a  prior  time  as  a  golden  age,  when  men  were  wiser  and 
better,  and  when  the  gods  came  nearer  to  them.  Thus  every- 
where we  find  people  looking  to  their  ancestors  for  wisdom. 
The  accumulation  of  knowledge  at  any  period  is  the  product 
of  the  past,  for  which  prior  generations  must  be  given  credit, 
and  there  is  a  tendency  to  credit  it  all  to  some  favorite  age. 
Whether  the  Egyptians  were  pioneers,  in  advance  of  all  other 
people  in  civilization,  cannot  be  stated  with  certainty,  but  that 
they  have  left  unmistakable  proofs  of  the  antiquity  of  their 

122 


EGYPT  123 

advancement,  which  antedate  those  of  any  other  people  may 
be  safely  asserted.  Owing  to  the  peculiar  climate  of  the  coun- 
try and  the  desire  to  leave  enduring  monuments,  the  investi- 
gator of  today  may  study  at  first  hands  the  work  of  Egyptians 
who  lived  many  thousands  of  years  ago.  He  may  read  on 
granite  monuments,  or  even  on  frail  papyrus,  the  inscriptions 
of  Egyptian  artists  and  scribes  in  the  original  hieroglyphics 
as  made  by  themselves  long  prior  to  the  time  of  Moses  or 
Joseph.  The  profound  interest  with  which  students  of  all  the 
sciences  to  which  they  are  related  have  in  recent  years  stud- 
ied these  ancient  records,  and  the  diligence  and  success  with 
which  their  efforts  to  decipher  and  interpret  them  have  been 
rewarded,  have  added  greatly  to  our  knowledge  of  the  past 
and  of  the  arts,  which  before  were  traced  only  to  people 
nearer  to  us  in  time  and  in  blood. 

The  starting  point,  from  which  Egyptian  history  is  written 
in  modern  times,  is  the  reign  of  Menes,  who  united  the  upper 
and  lower  countries  and  established  his  capital  at  Memphis. 
The  date  of  his  reign  is  not  definitely  known,  but  it  could  not 
have  been  much  later  than  4000  B.C.  and  may  have  been 
much  earlier.  From  his  time  a  list  of  successive  dynasties  is 
given  by  ancient  writers,  and  Herodotus  tells  us,  that  the 
priests  read  to  him  from  a  papyrus  the  names  of  330  mon- 
archs,  who  ruled  as  his  successors  to  the  reign  of  Moeris. 
After  him  came  a  great  monarch,  whose  name  he  calls  Sesos- 
tris.  He  also  says  that  they  told  him  that  in  the  time  of 
Men  (Menes),  all  Egypt  except  the  Thebaic  canton  was  a 
marsh,  none  of  the  land  below  lake  Moeris  then  showing  itself 
above  the  surface  of  the  water.  There  are  no  records  from 
which  a  connected  account  of  the  successive  rulers  can  be 
constructed,  and  it  is  quite  impossible  to  fix  dates  in  the  early 
reigns  with  any  fair  degree  of  accuracy.  How  many  people 
were  ruled  over  by  Menes  and  what  system  of  government  had 
prevailed  before  his  time,  we  do  not  know,  nor  can  the  state 
of  the  arts  at  that  time  be  declared,  nor  the  condition  of  the 
valley  of  the  Nile  be  described  further  than  that  it  was  ex- 
ceedingly fertile,  then  as  now,  and  subject  to  yearly  overflow 
from  the  river.     Whether  it  then  cf»ntained  forests  and  waste 


124  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

lands  or  was  already  cleared  and  cultivated  is  unknown.  1  low 
long  the  people  had  then  been  dwellers  in  the  valley  of  the 
Nile,  whence  they  came  and  how  they  had  lived  in  prior  times, 
are  questions  that  cannot  be  answered. 

The  contemporaneous  inscriptions  do  not  begin  till  about 
the  time  of  what  is  termed  the  Fourth  Dynasty,  if  the  scholars 
arc  correct  in  their  inferences.  The  three  great  pyramids  of 
Gizeh,  built  as  enduring  tombs  of  successive  Pharaohs,  are 
assigned  to  this  time.  These  great  works  evidence  a  numer- 
ous population,  without  whose  labor  they  could  not  have 
been  constructed,  a  strong  government,  able  to  command  the 
services  of  the  necessary  workers,  and  also  indicate  peaceful 
relations  with  all  other  people,  for  war  of  any  great  magni- 
tude would  almost  certainly  have  absorbed  the  attention  and 
energies  of  the  nation  to  too  great  a  degree  to  allow  such 
vast  works  to  be  carried  forward  at  the  same  time.  These 
monuments  tell  us  with  certainty  that  great  numbers  of  people 
worked  in  concert  for  their  completion,  and  that  the  govern- 
ment must  have  been  firmly  established  and  the  people  ac- 
customed to  the  exercise  of  authority.  The  implements  used 
in  their  construction  prove  that  the  art  of  metal  working  was 
well  advanced.  The  power  employed  in  transporting  the  ma- 
terial and  placing  it  in  position,  as  shown  by  the  pictures  and 
inscriptions,  was  mainly  the  combined  strength  of  great  num- 
bers; but  Herodotus  tells  us  that  machines  were  used  for 
raising  the  great  stones  to  their  positions,  and  this  seems  prob- 
able, though  we  have  no  description  of  them.  The  pictures, 
which  have  been  preserved,  exhibit  the  evolution  of  dress 
from  a  simple  short  skirt,  not  much  more  to  the  purpose  than 
a  breech  clout,  to  a  costume  consisting  of  a  shirt,  skirt,  long 
over  dress,  sandals,  wig,  etc.  It  is  not  necessary  to  mention 
mere  ornaments,  for  the  lowest  races  all  indulge  in  ornaments 
according  to  taste  and  ability,  though  clothing  be  considered  a 
superfluous  luxury  or  not  thought  of  at  all.  At  the  time  of 
the  building  of  the  great  pyramids  the  evolution  in  dress  was 
not  much  past  the  primary  stage  and  short  skirts  were  in 
fashion.  In  agriculture,  though  the  implements  used  were 
crude,  the  variety  of  crops  raised  was  quite  extensive,  and 


EGYPT  125 

the  people  were  well  supplied  with  cattle,  sheep,  goats  and 
donkeys,  as  well  as  with  fowls,  especially  geese  and  ducks. 

In  the  earliest  times  of  which  we  have  any  record,  a  division 
of  the  country  into  the  upper  or  south  and  lower  or  north  was 
recognized.  The  political  organization  of  the  upper  country 
seems  to  have  been  in  advance  of  that  of  the  lower,  and  the 
internal  development  of  it  probably  preceded  that  of  the  more 
marshy  delta.  While  the  government  of  Egypt  was  at  all 
times  monarchical  in  form,  the  actual  administration  was 
ordinarily  in  accordance  with  established  rules,  which  were 
recognized  as  limitations  on  the  power  of  the  officials.  The 
people,  however,  were  without  substantial  guarantee  against 
the  oppression  of  despotic  Pharaohs,  and  the  construction  of 
the  great  pyramids  w'as  a  heavy  burden,  mercilessly  imposed 
on  his  subjects  by  the  king. 

According  to  the  earliest  accounts,  under  what  is  termed  the 
old  empire,  upper  Egypt  was  divided  into  provinces,  the  local 
government  of  each  of  which  was  hereditary  in  a  noble  family. 
The  same  family  also  ordinarily  held  the  office  of  high  priest. 
In  those  times  the  nobility  seem  to  have  held  a  large  share  >.if 
[political  power,  and  the  central  authority  to  have  been  less 
potent  than  in  later  times.  The  division  of  lower  Egypt  into 
provinces  or  nomes  appears  to  have  followed  later. 

The  character  of  the  government  was  unmilitary.  The 
worship  of  the  gods,  maintaining  the  temples  and  honoring 
the  dead,  occupied  a  large  share  of  the  attention  of  the  gov- 
ernment, and  required  the  services  of  a  numerous  priesthood, 
always  closely  allied  to  the  ci\il  authorities,  and  who  usually 
combined  priestly  functions  with  administrative  ones.  There 
were  thirty  "great  nicn  of  the  south"  having  unequal  districts 
and  powers.  A  governor  of  a  district  was  also  a  judge  and 
ruler  of  the  chief  town.  It  was  the  fashion  to  combine  a 
long  list  of  official  titles,  many  of  which  were  often  without 
real  significance.  As  judges  they  were  priests  of  Ma'at  the 
goddess  of  truth.  Over  these  thirty  chief  men  of  the  South 
was  a  governor  of  the  south.  The  lower  country  was  after- 
ward divided  into  similar  nomes  and  placed  under  a  governor 
of  the  n'jrth  counlrv,  I)iil  at  what  date  these  v/ere  established 


126  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

does  not  appear,  though  the  title  of  "governor  of  the  north 
country"  appears  in  inscriptions  of  the  time  of  the  Middle 
empire.  In  each  of  the  small  districts  into  which  the  country 
was  divided,  there  was  a  court  of  justice,  a  storehouse  for 
corn  and  local  militia.  The  central  power  was  mainly  con- 
cerned with  the  revenue  and  filling  the  treasure  houses 
Tiiere  was  a  central  finance  department,  which  employed 
numerous  superintendents  and  scribes  to  attend  to  the  col- 
lection and  care  of  the  public  revenues,  most  of  which  were 
received  in  kind  from  the  fields,  mines  and  workshops.  There 
was  a  superintendent  of  agriculture,  who  had  general  charge 
of  matters  connected  with  overflow  and  irrigation,  and  also 
a  superintendent  of  the  forests  in  the  border  country  up  the 
Nile. 

The  chief  judge  was  the  highest  official  under  the  king. 
He  was  the  "leader  of  the  great  men  of  the  south  and  of  the 
north"  and  "second  after  the  king  in  the  court  of  the  palace," 
to  these  were  often  added  a  long  list  of  priestly  and  other 
titles,  some  of  which  indicated  real  power  and  substantial 
duties.  Under  him  were  numerous  judges  of  different  de- 
grees. Six  great  courts  are  spoken  of,  made  up  of  local 
judges.  Great  respect  was  entertained  for  law  and  the 
judicial  offices. 

In  each  province  or  nome  there  were  officials  of  high  and 
low  degree  charged  with  various  public  functions.  As  under 
most  modern  governments,  there  was  a  constant  struggle  to 
gain  official  preferment,  and  the  main  end  of  all  public  ser- 
vants was  the  gathering  of  revenues  for  themselves  and  those 
under  whom  they  served.  The  beneficial  service  rendered  for 
the  multitude  was  in  public  works,  the  administration  of  jus- 
tice and  protection  against  external  enemies.  Of  the  jniblic 
works  those  connected  with  agriculture  and  the  distribution 
of  water  by  canals,  reservoirs,  etc.  were  highly  useful,  while 
the  construction  of  temples  and  tombs,  for  which  no  other 
people  seem  to  have  had  so  much  regard,  gratified  the  pride 
and  accorded  with  the  sentiments  of  the  people. 

The  monuments  and  records  were  made  to  preserve  the 
memory  of  the  rich  and  powerful.    The  inscriptions  show  the 


EGYPT  127 

state  and  surroundings  of  the  nobility,  their  storehouses  and 
servants.  As  the  monuments,  on  which  these  inscriptions 
appear,  were  constructed  under  the  orders  of  those  whose 
memory  they  perpetuate  or  their  friends,  the  purpose  they 
subserve  is  primarily  to  attest  their  importance.  What  is 
shown  of  the  condition  of  the  lower  orders  of  society,  is 
merely  as  incident  to  the  state  of  the  chief.  The  old  empire 
exhibits  a  nobility  and  priesthood  with  power  over  the  peas- 
ants and  serfs  firmly  established,  much  wealth  and  luxury  for 
the  higher  orders,  and  settled  habits  of  industry  enforced  on 
the  poor.  The  middle  empire  shows  an  extension  of  the 
official  system,  but  no  marked  change  in  the  organization  of 
society  or  in  the  theory  of  the  government.  How  numerous 
a  class  of  independent  tradesmen  or  small  land  owners  ex- 
isted at  any  period  cannot  be  definitely  determined,  though 
there  appear  to  have  been  some  such. 

The  Twelfth  Dynasty,  covering  the  period  of  about  the 
twentieth  and  twenty-first  centuries  B.C.,  is  spoken  of  as  a 
time  of  good  government,  prosperity  and  advancement  in 
learning.  It  was  the  classical  age  of  letters,  in  which  the 
standard  of  good  writing  was  established.  Afterward  fol- 
lowed a  period  of  weakness  and  decline,  at  the  end  of  which 
the  country  was  invaded  by  the  Hyksos  or  shepherd  kings 
from  the  northeast.  The  particulars  of  their  invasion  and 
rulership  are  not  preserved,  but  it  is  clear  that  the  ancient 
Egyptian  people  were  not  displaced,  nor  were  the  laws  and 
customs  of  the  invaders  imposed  on  the  conquered  nation. 
They  levied  tribute  and  compelled  submission  to  their  power 
for  a  time. 

The  new  empire  began  with  Ahmose  who  drove  out  the 
Hyksos  and  followed  them  into  the  south  of  Palestine.  Un- 
der his  reign  began  the  military  age.  in  which  Egyptian  arms 
were  carried  into  remote  regions.  Palestine  and  Asia  Minor 
to  the  Euphrates  were  overrun  by  the  monarchs  of  the  Eigh- 
teenth and  Nineteenth  dynasties  and  the  country  to  the  south 
was  subdued :  Tribute  was  exacted  from  the  con(|ucred  na- 
tions, but  Egyptian  civilization  failed  to  take  root  and  grow  on 
any  fr)reign  soil.     Contact  with  distant  pcojjle  liad  its  cITcct  on 


128  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  Egyptians,  and  the  isolation  in  which  they  had  apparently 
lived  dnring-  all  of  the  early  dynasties  was  at  an  end.  With 
\arying  snccess  they  fonght  the  Asiatics  on  the  north  and 
the  Ethiopians  on  the  sonth.  Thothmes  III  crossed  the  Eu- 
I)hrates  and  received  tribnte  from  many  nations.  Contact 
with  distant  people  gave  new  ideas  as  well  as  tribute  to  the 
Egyptians.  Amenhotc})  IV  attempted  to  reform  the  religion 
?,nd  set  up  the  worship  of  the  Sun  god  as  the  only  living  god. 
He  sought  not  merely  to  introduce  the  worship  of  this  deity 
but  also  to  destroy  all  the  old  gods.  The  change  however 
failed  to  endure,  and  under  his  successors  the  old  worship 
was  restored. 

Under  Ramses  II  Egypt  seems  to  have  reached  the  zenith 
uf  its  power,  and  of  activity  in  the  construction  of  temples 
and  other  great  public  works.  With  the  departure  of  the 
Hyksos  and  the  estal)lishment  of  the  new  empire  some  changes 
in  the  organization  of  the  government  took  ])lace.  The  an- 
cient nomarchs  and  local  landed  aristocracy  gave  way  to  royal 
officials,  and  landed  property  became  concentrated  in  the  pos- 
session of  the  king  and  the  priesthood.  This  change  is  l)y 
some  attributed  to  military  rewards,  incident  to  the  wars 
against  the  Hyksos,  but  in  Genesis  it  is  recorded,  that  through 
the  policy  of  Joseph  in  storing  up  a  vast  supply  of  grain  dur- 
ing the  seven  years  of  plenty  and  then  selling  it  to  the  [)eo])le 
during  the  succeeding  seven  years  of  famine,  Pharoah  came 
to  own  all  the  land  except  that  belonging  to  the  temples.  With 
the  ownership  of  all  the  landed  property,  from  which  the 
king  exacted  one-fifth  for  rent,  his  power  became  despotic, 
and  there  were  no  strong  subjects  to  check  it.  The  middle 
order  disappeared,  leaving  the  king  and  his  officials  at  the 
top  and  a  multitude  of  slaves  at  the  base  of  the  social  struc- 
ture. Military  chiefs  and  foreign  mercenary  troops  became 
conspicuous.  It  was  possible  for  foreigners  to  hold  high  po- 
sitions :  thus  Joseph  was  sold  by  his  brethren  to  Potiphar,  who 
placed  him  at  the  head  of  the  household,  and  afterward 
Pharaoh  raised  him  to  the  highest  office  under  the  crown. 
The  family  of  Jacob  came  into  Egypt  in  great  favor,  due  to 
the  influence  of  Joseph,  but  afterward  were  reduced  to  hard 
service  under  severe  taskmasters. 


EGYPT  129 

A  marked  characteristic  of  the  system  of  government  was 
minuteness  of  details  in  official  orders  and  reports.  The 
scribe  was  always  at  hand  to  note  down  every  item  of  reve- 
nue received,  every  expenditure  from  the  treasury,  as  well  as 
every  public  act  of  the  officials.  A  large  proportion  of  the 
population  consisted  of  serfs  and  bondmen,  organized  by 
companies  under  overseers,  who  drove  them  to  their  tasks  as 
mercilessly  as  is  usual  with  slaveholders.  The  workmen  were 
divided  into  companies  of  artisans  and  laborers  in  each  dif- 
ferent kind  of  employment,  and  were  treated  with  rigor  and 
contempt  by  their  superiors.  Above  them  were  officials  of 
all  degrees  from  the  chief  of  the  company  to  the  governor. 
The  laborers  employed  in  the  tombs  and  on  the  public  works 
received  their  rations  from  the  public  granaries  and  store- 
houses. Records  kept  by  chief  workmen  are  still  extant, 
showing  the  names  of  the  workmen,  the  days  on  which  they 
worked  and  failed  to  work  and  the  reasons  for  failure.  Some- 
times strikes  were  caused  by  delaying  or  withholding  their 
rations.  Herodotus  says  the  people  were  divided  into  se\en 
distinct  classes.  Priests,  warriors,  cowherds,  swineherds, 
tradesmen,  interpreters  and  boatmen.  That  interpreters 
should  be  mentioned  as  a  class  shows  that  in  his  time  the 
intercourse  with  foreigners  was  very  extensive,  else  there 
could  have  been  no  need  of  many  of  them. 

The  family  ordinarily  consisted  of  husband,  wife  and  chil- 
dren. Polygamy  was  rare,  though  the  rich  made  concubines 
of  maid  servants.  Ramses  II  took  three  royal  consorts.  The 
marriage  of  sisters  was  practiced,  and  seems  to  have  been  of 
increased  frequency  after  the  Greek  conquest,  at  least  among 
the  kings.  Among  the  lower  classes  morals  were  very  low, 
and  marriages  often  informal  and  broken  at  pleasure.  There 
was  no  seclusion  of  women  as  under  Mohammedan  rule. 
Except  among  the  baser  sort,  the  natural  bonds  of  affection 
between  parents  and  children  appear  to  have  been  as  strong 
as  elsewhere,  and  a  marked  {peculiarity  of  the  people  was  their 
inordinate  reverence  for  and  care  of  the  dead.  This  did  not 
end  with  embalming  the  body  and  building  a  costlv  tomb,  but 
the  dea<l   re(|uired  a  distinct  department   of   the  government. 


130  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Mothers  nursed  their  children  for  three  years,  and  in  their 
early  years  kept  them  nude,  but  they  had  dolls  and  toys  to 
play  with.  The  school  boy  in  ancient  times  was  dressed  with 
a  girdle.  Children  of  the  upper  classes  were  often  sent  away 
from  home  to  school,  even  at  a  tender  age.  The  school  course 
included  ethics,  practical  philosophy  and  manners.  The  road 
to  political  station  was  through  the  school,  and  the  statesman 
must  first  become  a  scribe.  A  generous  use  of  the  rod  was 
deemed  essential  to  the  proper  development  of  the  student. 
All  classes  appear  to  have  shared  to  some  extent  in  learning. 
Considering  the  great  attention  paid  to  letters  by  the  Egyp- 
tians, it  seems  strange  that  connected  histories  have  not  been 
preserved  to  us.  Fragments  of  official  documents  and  cor- 
respondence and  the  inscriptions  engraved  on  enduring  monu- 
ments furnish  the  disjointed  writings,  from  which  the  modern 
scholar  nuist  form  his  description  of  Egyptian  civilization. 
They  made  much  progress  in  astronomy,  divided  the  year 
into  365  days  and  determined  the  direction  of  the  poles  with 
accuracy.  In  medicine  the  leading  idea  seems  to  have  cor- 
resiK)nde(,l  with  that  not  long  since  abandoned,  that  the  more 
filthy  and  repulsi\'e  the  substance,  the  more  potent  as  a  medi- 
cine. Many  and  most  gross  superstitions,  too  numerous  for 
even  a  general  description,  were  indulged  in  by  all  classes  of 
the  people.  Something  like  a  picture  of  the  times  is  ex- 
hibited by  the  record  of  a  celebrated  case  which  came  up  in 
the  time  of  Ramses  IX  (about  iioo  B.C.).  Under  the  gov- 
ernor in  Thebes,  there  was  a  "prince  of  the  town"  over  the 
eastern  part,  and  a  "prince  of  the  west"  or  "chief  of  the 
police  of  the  necropolis"  over  the  western  part,  the  city  of 
the  dead.  Complaint  was  entered  by  the  prince  of  the  town 
that  tombs  in  the  necropolis  had  been  robbed.  The  court 
having  jurisdiction  of  the  case  consisted  of  "Cha  emuese  the 
superintendent  of  the  town  and  governor"  assisted  by  Nesan- 
ni,  scribe  of  Pharoah  and  Neferckere-em-per-Amun  the 
speaker  of  Pharaoh.  A  commission  was  appointed  by  the 
court  to  examine  the  tombs  and  report.  This  was  done,  and 
the  report  describes  circumstantially  what  pyramids  and 
mummy  pits  were  examined.     Out  of  ten,  nine  were   found 


EGYPT  131 

uninjured.  As  to  the  other  the  commissioners  reported  "The 
pyramid  of  the  King  Sebekemsaf.  It  was  found  that  the 
thieves  had  bored  a  mine  and  penetrated  into  the  mummy 
chamber.  They  had  made  their  way  out  of  the  outer  hall 
of  the  tomb  of  Nebamun  the  superintendent  of  food  under 
Thothmes  III.  It  was  found  that  the  king's  burial  place  had 
l)een  robbed  of  the  monarch;  in  the  place  also  where  the  royal 
consort  Nubch'as  was  buried  the  thieves  had  laid  hands  on 
her."  "The  governor  and  the  prince  vassals  ordered  a  thor- 
ough examination  to  be  made,  and  it  was  proved  exactly  by 
what  means  the  thieves  had  laid  hands  on  this  king  and  on 
his  royal  consort." 

The  examination  of  the  private  tombs  disclosed  that  those 
of  two  "singers  of  the  high-priestess  of  Anion  Re,  King  of 
the  gods"  had  been  broken  into  and  other  private  tombs.  "It 
was  found  that  they  had  all  been  broken  into  by  the  thieves, 
they  had  torn  the  lords  (i.e.  the  bodies),  out  of  their  colons 
and  out  of  their  bandages,  they  had  thrown  them  on  the 
ground,  they  had  stolen  the  household  stuff  which  had  been 
buried  with  them,  together  with  the  gold,  silver  and  jewels 
found  in  their  bandages."  The  commission  so  reported,  and 
the  prince  of  the  necropolis  sent  in  the  names  of  the  sup- 
posed thieves,  who  were  immediately  arrested.  They  were 
"examined,"  that  is  "beaten  with  stick  on  their  hands  and 
feet,"  until  they  confessed  that  they  had  entered  the  tomb 
of  the  king  and  taken  rich  ornaments  of  gold  from  the  mum- 
mies of  the  king  and  queen  and  divided  the  booty  among  the 
eight  robbers.  To  supplement  and  make  good  their  confes- 
sion they  were  required  to  identify  the  pyramid  they  had 
robbed.  The  governor  and  royal  scribe  commanded  them  to 
be  taken  in  their  presence  to  the  necropolis,  where  they  identi- 
fied the  toml)  of  Sebekemsaf  as  that  to  which  their  confession 
referred.  The  court  thereupon  made  report  to  the  Pharaoh, 
who  alone  could  jjronounce  sentence  in  the  case.  Meanwhile 
the  tliieves  were  ])laced  in  custody  of  the  high  priest  of  Amon 
and  confined  in  the  prison  of  the  temple!  On  suspicion  of 
(jther  desecrations  a  metal  worker  of  bad  repute  was  ar- 
rested and  "examined."     He  confessed  that  he  had  been  in 


133  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  tomb  of  Ese,  wife  of  Ramses  II  but,  when  taken  to  show 
the  scene  of  his  crime,  he  pointed  out  the  graves  of  the  chil- 
dren of  Ramses  II,  in  which  no  one  had  been  buried.  There- 
after, ''the  princess  examined  the  tombs  and  the  large  cham- 
bers in  the  place  of  the  beauties,  in  which  the  beautiful  royal 
children,  the  royal  consorts,  the  royal  mothers  and  fathers  of 
the  mothers  of  the  Pharaoh  rest.  They  were  found  unin- 
jured." Thereupon  there  was  great  rejoicing  and  a  "great 
embassy  to  the  town  consisting  of  the  inspectors,  the  chiefs 
of  the  workmen  of  the  necropolis,  the  officers  of  the  police,  the 
police  and  all  the  bondservants  of  the  necropolis  of  western 
Thebes." 

Three  years  later,  other  robberies  having  occurred,  about 
sixty  arrests  were  made,  including  many  officials  of  low  rank, 
a  scribe  of  the  treasury  of  Amon,  a  priest  of  Amon  and  one 
of  Chons.  They  had  robbed  the  outer  chambers  of  the  tombs 
of  Ramses  II  and  Sety  I  and  sold  the  stolen  property.  A 
quarrel  over  the  division  of  the  spoils  led  to  the  discovery. 
This  capture  did  not  end  the  thefts,  and  it  was  finally  deter- 
mined to  abandon  the  tombs  in  the  desert  in  order  to  save  the 
mummies.  These  were  moved  from  place  to  place,  and  finally 
concealed  in  a  deep  rocky  pit  in  the  mountains  of  Der-el-bahri, 
where  they  reposed  until  modern  robbers  found  the  pit  in 
1875,  and  in  1881  the  authorities  were  informed  of  it,  and 
the  mummies  of  all  the  great  monarchs  of  the  new  empire 
were  brought  to  light.  Great  regard  for  the  remains  of  the 
dead  is  not  exclusively  a  trait  of  the  Egyptians,  but  they  were 
more  lavish  in  their  expenditures  for  the  preservation  of  the 
bodies  of  the  dead  than  any  other  ])eoi)le.  As  the  occurrences 
above  mentioned  show,  their  care  did  not  end  witii  embalming 
the  bodies  and  building  vast  tombs  for  them,  but  continued 
in  watching  and  preserving  the  necro|)olis  from  generation 
to  generation. 

Under  the  old  empire  there  were  six  courts  of  justice  or 
great  houses,  at  the  head  of  which  was  a  chief  judge.  Each 
of  the  "thirty  great  men  of  the  south"  was  a  judge  and  dis- 
trict chief  and  a  member  of  one  of  the  great  houses.  The 
"governor  of  the  south"  alone  had  a  .seat  in  all.     These  great 


EGYPT  133 

men  had  served  as  scribes  and  inferior  officers  of  the  court 
before  promotion  to  the  full  dignity  of  judges.  Besides  these 
there  were  local  judges  in  the  towns.  The  special  god  of  the 
judges  was  Ma'at  the  goddess  of  truth.  All  judges  of  high 
rank  served  as  her  high  priests.  During  the  middle  empire 
this  organization  of  the  courts  disappeared.  While  the  office 
of  chief  judge  continued,  even  under  the  New  Empire,  the  six 
great  houses  were  no  more.  Under  the  new  empire  the  com- 
position of  the  courts  varied  from  time  to  time,  including 
priests  and  laymen  in  varying  proportions,  but  courts  were 
held  at  fixed  places  where  justice  was  regularly  administered. 
The  procedure  seems  to  have  been  simple.  The  court  being 
seated  the  contending  parties  in  civil  cases  came  before  it 
standing.  The  plaintiff  first  preferred  his  complaint  orally, 
the  defendant  was  then  required  to  answer,  after  which  the 
court  gave  judgment.  The  successful  party  then  turned  to 
the  other  party  and  stated  to  him  the  terms  of  the  judgment, 
whereupon  the  loser  said,  *T  do  it,  indeed  I  do  it,  I  do  it." 
What  process  followed  in  case  of  failure  to  perform  is  not 
clear. 

In  criminal  cases  the  governor  preferred  the  accusation  as 
plaintifT,  and  the  defendant  then  answered  to  it,  thereupon 
the  court  seems  to  have  filled  the  place  substantially  of  a  jury 
and  found  the  prisoner  guilty  or  not  guilty,  this  finding  was 
then  forwarded  to  the  Pharaoh,  who  pronounced  sentence. 

That  the  Egyptians  had  written  laws  there  seems  no  reason- 
able doubt,  and  it  was  claimed  that  they  were  composed  by 
Thoth,  the  god  of  wisdom.  The  ancient  law  books  have  not 
been  preserved  and  their  contents  come  down  to  us  only  in 
fragments.  However  complete  the  written  laws  may  have 
been,  they  do  not  appear  to  have  restrained  the  kings  who 
chose  to  override  them,  yet  respect  for  the  forms  of  law  seems 
to  have  had  quite  a  firm  hold.  Thus  Pepy,  in  the  Sixth  Dy- 
nasty, established  a  special  court  to  inquire  into  the  acts  of 
some  of  his  courtiers,  and  Ramses  ITT  created  a  special  court 
to  try  members  of  his  household,  who  had  conspired  against 
him.  The  record  of  the  court  of  the  proceedings  against  one 
of  the  conspirators  is  a  model  of  brevity. 


134  EVOLUTiaX   OF  GU\'ERXMK.\TS  AXU  LAWS 

"Penture  formerly  bore  another  name.  He  was  brou,^ht 
before  the  court,  because  he  had  joined  with  his  mother  Tey, 
when  she  conspired  with  the  women  of  the  harem,  and  be- 
cause he  acted  with  hostihty  against  his  lord.  He  was 
brought  before  the  vassals  that  they  might  question  him. 
They  found  him  guilty,  they  dismissed  him  to  his  house ;  he 
took  his  own  life."  Before  this  investigation  was  closed  an 
incident  occurred,  which  reflects  severely  on  the  special  court 
organized  for  the  investigation.  It  was  discovered  that  the 
accused  women  of  the  harem  had  sought  out  three  members 
of  the  commission  and,  with  them  and  Pai'es,  the  chief  culprit, 
had  "made  a  beer  house,"  that  is,  held  a  revel.  But  they  also 
were  apprehended,  and  "their  punishment  was  fulfilled  by 
the  cutting  off  of  their  noses  and  ears." 

While  the  power  of  Egypt  continued  to  be  great,  it  was 
not  extended  after  Ramses  II.  During  the  Twenty-fifth  Dy- 
nasty Egypt  w^as  ruled  by  Ethiopian  kings,  who  however  were 
not  strangers  to  Egyptian  civilization,  if  indeed  they  were  not 
of  Egyptian  blood.  At  intervals  after  the  time  of  Ramses 
there  w'ere  wars  w-ith  the  Assyrians  with  varying  success,  till  in 
the  year  662  B.C.  Egypt  became  an  Assyrian  province.  Eight 
years  later,  however,  with  the  aid  of  Greek  mercenaries  they 
were  driven  out.  Psammetichus  founded  the  Twenty-sixth 
Dynasty,  w^hich  endured  a  little  more  than  a  century.  During 
this  period  there  was  much  intercourse  with  the  Greeks. 

In  525  B.C.  Cambyses  invaded  Egypt  and  reduced  it  to  a 
Persian  province.  In  the  reign  of  Artaxerxes  the  Egyptians 
revolted  and  were  aided  by  the  Athenians,  but  without  suc- 
cess. About  411  B.C.  another  revolt  proved  successful  and 
Egypt  remained  an  independent  kingdom  till  about  343  B.C. 
when  it  was  again  overrun  by  the  Persians,  who  maintained 
their  ascendency  till  Alexander's  conquest.  Though  under  the 
Ptolemies  Egypt  w-as  again  an  independent  kingdom,  it  w^as 
under  Greek  rulership.  When  the  Romans  came  the  ruler- 
ship  passed  into  their  hands,  and  since  their  time"  there  has 
been  no  such  nation  as  Egypt.  Though  the  land,  the  river 
and  people  are  to  all  appearances  substantiallv  the  same,  the 
spirit  is  wanting,  and  Egypt  has  been  dead  for  more  than  two 


EGYPT  135 

thousand  years.  Indeed  the  pecuHar  civilization,  which  still 
astonishes  the  world  by  its  enduring  monuments,  can  hardly 
be  said  to  have  existed  in  full  vigor  much  later  than  the  twelfth 
century  B.C. 

With  the  rise  of  the  Asiatic  and  European  nations,  the  mili- 
tary spirit  of  the  Egyptians  developed  for  a  time,  and  their 
power  was  extended  in  all  directions,  yet  though  the  Greeks 
borrowed  their  arts  and  their  learning,  and  the  light  of  their 
ancient  civilization  spread  into  Europe  and  Asia  Minor,  they 
planted  no  colonies  which  presented  new  and  advancing  types 
of  the  mother  country.  Nor  to  this  day  has  the  civilization 
peculiar  to  any  other  country  taken  firm  root  in  Egypt.  To  all 
appearances  the  fellah  of  today  is  very  nearly  what  his  ancestor 
of  three  thousand  years  ago  was,  but  the  ruling  spirits,  who 
planned  the  great  works  and  ordered  the  affairs  of  Egypt, 
are  no  more.  The  peasant  serf  is  there,  oppressed  through 
taxation  as  severely  as  his  ancestors  were  under  the  Pharaohs. 
He  has  learned  to  submit  without  resistance  to  the  burdens 
miposed  by  foreign  masters,  as  his  forefathers  submitted  to 
the  orders  of  Cheops  in  building  a  pyramid.  Unlike  the  Chi- 
nese, the  Egyptians  have  never  been  able  to  impose  the  spirit 
of  their  civilization  on  their  conquerors,  nor  on  the  other  hand 
have  the  conquerors  been  able  to  imbue  new  life  into  their 
subjects  and  by  education  develop  a  new  civilization.  The 
greatest  marvel  is  that  with  the  constant  influx  of  Europeans 
and  Asiatics  into  the  rich  valley,  the  type  of  man  dwelling 
there  has  been  modified  to  so  slight  a  degree.  The  valley  of 
the  lower  Nile  is  the  tomb  of  a  once  great  people,  and  the 
toiling  peasants  of  today  are  hardly  better  representatives  of 
the  ancient  spirit  than  the  mummies,  which  have  been  pre- 
served with  so  much  care  through  the  long  centuries.  Since 
the  Greek  conquest  the  government  and  laws  of  Egypt  have 
been  such  as  a  foreign  ruler  has  seen  fit  to  impose. 

In  recent  years  there  has  been  an  awakening  of  a  national 
s])iril  in  l^gy])t,  and  as  a  result  of  the  political  upheavals  follow- 
ing the  great  war  nominal,  if  not  complete,  independence  has 
been  achieved. 


136  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Authorities 

J.   Gardner  Wilkinson:     The   Manners  and  Customs  of  the 

Ancient  Egyptians. 
Adolph  Erman :    Life  in  Ancient  Egypt. 
George  Rawlinson  :   Ancient  Egypt. 
J.  P.  Mahaffy :     Empire  of  the  Ptolemies. 
W.  M.  F.  Petrie :    A  History  of  Egypt. 
James  H.  Brestead :  Ancient  Records  of  Egypt. 
James  Baikie :     The  Glory  of  the  Pharaohs. 
Herodotus. 


CHAPTER  VII 

Chaldea,  Babylonia,  Judea  and  Persia 

While  only  a  small  part  of  the  people  of  Europe  trace  their 
descent  from  inhabitants  of  the  territory  in  Asia  now  domi- 
nated by  the  Turks,  religious  teachings  have  caused  them  to 
regard  some  spot  in  or  near  this  territory  as  the  earliest  home, 
not  only  of  their  own  progenitors,  but  also  of  the  whole  hu- 
man race.  Egyptian  civilization  had  its  influence  on  Greeks 
and  Romans,  yet  it  has  been  far  less  regarded  than  that  of 
the  early  people  of  the  valleys  of  the  Euphrates  and  Tigris 
and  the  region  bordering  on  the  eastern  end  of  the  Mediter- 
lanean.  It  is  impossible  to  accurately  measure  the  extent  to 
which  the  religion,  morals,  laws  and  governments  now  exist- 
ing, not  only  throughout  Europe  but  wherever  Europeans 
dominate,  have  been  moulded  by  the  lessons  transmitted  to 
us  from  those  people.  Comparative  philology  teaches  the 
kinship  of  people  long  supposed  to  be  altogether  foreign  to 
each  other,  and  the  Persians,  Brahmans  of  India,  Germans 
and  allied  people  of  Europe  are  all  assigned  to  one  race. 
Nevertheless  the  influence  of  the  civilization  of  ancient  Chal- 
dea, Babylonia,  Persia,  Media,  Assyria,  Palestine,  Phoenicia 
and  Greek  Asia  has  not  descended  to  us  with  the  blood  of 
ancestors  but  mainly  by  example  and  teachings.  The  Biblical 
account  of  creation  fills  a  space  which  substantially  all  people 
fill  with  fanciful  and  romantic  accounts  of  a  beginning.  Be- 
lief in  a  particular  account  usually  depends  on  the  educational 
inHucnces  to  which  the  individual  is  subjected.  Records 
reaching  back  to  the  origin  of  any  race  of  i)eoi)le  are  of  ne- 
cessity wholly  lacking. 

The  earliest  clear  evidence  of  man  and  his  works  in  the 
regions  named  is  derived  from  the  ruins  of  ancient  cities. 
The  oldest  of  these  of  which  we  have  knowledge  are  of  the 
Chaldeans,  who  occu])ie(l  the  lower  valley  of  the   lMii)lirates 

137 


138  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  Tigpis  and  neighboring  country.  According  to  the  Bible, 
the  IsraeHtes  derived  their  origin  from  the  city  of  Ur  in 
Chaldea.  "And  Terah  took  Abram  his  son  and  Lot  the  son 
cf  Haran  his  son's  son  and  Sarai  his  daughter-in-law,  his 
son  Abram's  wife,  and  they  went  forth  with  them  from  Ur 
of  the  Chaldeesto  go  unto  the  land  of  Canaan,  and  they  came 
unto  Haran  and  dwelt  there". ^ 

The  first  people  of  whom  any  accounts  are  attainable,  were 
familiar  with  the  leading  mechanical  arts,  the  use  of  money, 
the  cultivation  of  the  soil,  the  use  of  domestic  animals  and 
the  art  of  writing.  As  in  Egypt  formal  written  contracts 
were  common  and  are  found  on  the  clay  tablets  disclosed  by 
recent  excavations.  Abraham  bought  land  and  paid  for  it 
in  silver.  There  were  cities  and  villages,  merchants  and 
traders  as  well  as  hunters,  herdsmen  and  husbandmen.  How 
much  or  what  part  of  their  arts,  if  any,  were  borrowed  is 
not  known.  The  earliest  records  introduce  us  to  the  land  of 
Shinar  with  its  cities  of  Babel,  Erech,  Accad  and  Calneh  and 
out  of  this  country  went  forth  Asshur  and  builded  Nineveh. 

From  the  earliest  times  throughout  the  whole  region  we 
are  considering,  with  some  exceptions  hereafter  noticed,  the 
character  of  the  governments,  of  which  we  have  historic  ac- 
count, was  military  despotism  without  check  or  limitation  on 
the  power  of  the  kings.  Nothing  can  be  more  dreary  than 
the  recital  of  the  rise  and  fall  of  successive  dynasties,  always 
tending  to  reproduce  the  same  evils.  Through  the  ancient 
tablets  and  cylinders,  the  Bible  and  the  writings  of  historians, 
we  are  informed  of  the  names  and  the  military  feats  of  many 
rulers  styled  successively,  Chaldees,  Babylonians,  Assyrians, 
Medes,  Persians,  Parthians,  Scythians,  Bactrians,  Arabs, 
Turks  and  Tartars.  With  all  of  them  the  fundamental  idea 
of  government  has  been  similar  if  not  identical,  paternal 
kingly  power.  While  this  is  clearly  apparent,  the  structure 
of  society  at  different  periods  has  undoubtedly  passed  through 
many  changes  and  modifications.  These,  owing  to  the  vanity 
of  kings  and  the  lack  of  independent  historians,  are  difficult 
to  trace.    The  influence  of  the  priesthood  and  of  the  religious 

'  Genesis  XI-31. 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  139 

beliefs  of  the  people  has  always  been  very  great,  and  it  is  to 
this  portion  of  the  earth  and  neighboring  portions  of  Asia, 
that  we  look  as  the  birthplace  of  all  the  great  religious  sys- 
tems, which  have  so  profoundly  impressed  mankind,  and 
which  are  now  taught  throughout  the  world.  Moses,  Zoro- 
aster, Buddha,  Christ  and  Mohammed  have  successively 
taught  lessons  which  are  accepted  by  generation  after  gener- 
ation as  the  direct  and  authoritative  expression  of  divine 
truth.  The  profound  influence  of  these  various  teachings,  not 
only  on  private  morals  but  on  governments,  human  laws,  cus- 
toms and  the  structure  of  society,  is  to  be  noticed  everywhere. 
In  the  earliest  times  of  which  we  have  accounts,  we  find  the 
people  prone  to  have  a  special  god  or  gods  for  each  tribe  or 
nation  which  gained  a  well  defined  status  as  such.  The  early 
Hebrews  did  not  deny  the  existence  of  other  gods  besides 
Jehovah,  but  maintained  his  superiority.  The  Old  Testament 
mentions  numerous  gods  of  the  people  with  whom  the  Israel- 
ites contended,  as  really  existing,  but  unworthy  to  be  fol- 
lowed. The  people  were  taught  to  be  faithful  to  their  own 
god.  It  is  impossible  to  assign  a  date  for  the  earliest  general 
adoption  of  a  belief  in  a  single  god,  not  only  supreme  in 
power  but  without  rival  or  participant  in  authority.  This 
singleness  of  spiritual  power  accorded  with  the  human  des- 
potisms, which  have  flourished  in  that  region,  and  contrasts 
with  the  sprightly  pantheon  of  the  Greeks,  who  were  experi- 
mentalists and  jealous  of  unrestrained  authority.  With  an 
absolute  despot  at  the  head  of  the  government,  the  distribu- 
tion of  inferior  and  local  authority  was  on  the  same  princi- 
ple. Wherever  the  king  delegated  his  power  to  a  satrap  of 
a  district,  he  ruled  as  a  despot,  accountable  only  to  the  king. 
The  general  purpose  of  all  the  different  rulers,  of  whatever 
particular  nation  they  chanced  to  come,  in  extending  their 
dominions,  was  to  collect  tribute.  There  seems  to  have  been 
very  little  disposition  to  interfere  with  the  modes  of  life  of 
the  people  or  the  local  governments,  so  long  as  the  tribute  was 
paid.  Egyptian  conquest  in  Asia  merely  meant  tribute  from 
Asia  to  the  Pharaoh,  and  when  Egypt  became  subject  to  the 
Assyrians,  nnd  afterward  the  Persians,  Egypt  paid  tribute  to 


140  EVOLUTION'  OF  GOVERXMFA'TS  AXO  LAWS 

the  king.  The  taxes  were  collecteil  l)y  the  Itjcal  authorities, 
and  the  satrap  accounted  to  the  king  for  the  full  sum  charged 
to  his  districts.  Some  things  relating  to  the  primary  or- 
ganization of  society  are  known,  polygamy  and  slavery  were 
everywhere  and  at  all  times  allowed.  Surplus  males  were 
consumed  in  wars  or  converted  into  eunuchs  for  domestic 
service.  The  families  and  dependents  of  the  rich  were  very 
numerous.  Abraham's  household  as  described  in  the  Bible 
is  doubtless  typical  of  ancient  as  of  modern  patriarchal  fami- 
lies. It  is  not  to  be  understood,  however,  that  all  the  people 
were  included  as  members  of  such  establishments.  Babylon 
and  Nineveh  were  very  great  cities.  In  order  to  maintain 
their  vast  multitudes  of  people,  agriculture  was  carried  on 
with  great  industry  and  success.  Manufacturing  flourished, 
and  trade  was  extended  to  distant  lands.  The  descriptions 
we  have  of  the  people  of  Babylon  indicate  that  it  had  a  vast 
combination  of  good  and  evil,  like  every  other  great  city. 
That  the  people  were  industrious,  skillful  and  intelligent  is 
abundantly  proved  by  history  and  the  ruins  still  remaining. 
That  they  were  fond  of  luxurious  living  and  addicted  to  many 
vices  hardly  differentiates  them  from  the  dwellers  in  modern 
cities,  yet  some  of  their  customs  certainly  appear  most 
abominable. 

The  recent  discovery  of  the  Code  of  Hammurabi  affords 
us  a  copy  of  the  written  law  of  Babylon  promulgated  about 
2250  years  B.C.  (  Still  more  recent  researches  on  the  site  of 
ancient  Assur  have  brought  to  light  tablets  inscribed  with  parts 
of  the  Assyrian  code,  considerable  fragments  of  which  have 
been  translated.  Full  summaries  of  the  availa1)le  parts  of 
these  codes  are  given  in  the  appendix.)  There  is  no  better 
index  of  the  state  of  the  civilization  of  a  people  than  the  code 
of  laws  under  which  they  live.  It  indicates  their  industrial 
and  business  activities,  their  vices,  their  superstitions  and  their 
views  of  social  duty.  How  long  these  codes  remained  in  force 
we  are  not  informed.  It  was  probably  1800  years  later  than 
the  time  of  Hammurabi  when  Herodotus  visited  Babylon  and 
many  changes  had  taken  place. 

He  tells  us  that  once  in  each  vear  in  each  village  the  maid- 


■     CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  141 

ens  of  age  to  marry  were  collected  all  together  in  one  place, 
while  the  men  stood  around  them  in  a  circle.  The  women 
were  then  sold  for  wives  separately  to  the  highest  bidder. 
The  rich  Babylonians  had  to  bid  against  each  other  for  the 
favorite  ones,  each  going  to  the  highest  bidder.  When  all 
the  beauties  were  sold  and  the  men  ceased  to  bid,  the  ugly 
ones  were  sold  to  those  who  would  take  them  with  the  least 
marriage  portion,  which  was  made  up  from  the  prices  re- 
ceived from  the  sale  of  the  loveliest.  He  mentions  this  as  an 
excellent  custom,  but  says  it  had  fallen  into  disuse  in  his 
time,  and  that  instead,  the  poor  of  the  common  people  raised 
their  daughters  to  be  courtesans.  This  he  attributes  to  the 
oppression  of  the  rulers.  He  relates  what  he  terms  a  most 
shameful  custom  connected  with  the  worship  of  the  Babylon- 
ian Venus.  "Every  woman  born  in  the  country  must  once 
in  her  life  go  and  sit  down  in  the  precinct  of  Venus  and 
there  consort  with  a  stranger."  Seated  in  the  enclosure  of 
the  temple  with  wreaths  of  strings  about  her  head  she  must 
wait  till  a  stranger  throws  her  a  coin  and  says  "The  goddess 
Mylitta  prosper  thee."  She  must  then  go  with  him  whoever 
he  be.  He  adds,  that  when  this  religious  rite  has  been  per- 
formed, no  gift  however  great  will  prevail  with  her.  This 
hardly  seems  a  fair  statement  after  reading  what  is  said  of 
the  prevalence  of  prostitution. 

It  seems  reasonably  certain  that  public  morals  were  low 
at  and  after  the  time  of  which  Herodotus  wrote,  and  very 
probable  that  they  were  never  high.  The  Old  Testament  is 
filled  with  narrations  of  the  vile  customs  of  the  early  Israelites 
as  well  as  of  the  people  with  whom  they  came  in  contact,  of 
whom  apparently  the  Egyptians  were  the  best,  yet  pure  do- 
mestic life  was  not  wholly  unknown.  Away  from  the  cities 
and  perhaps  also  within  them  the  village  system  prevailed. 
The  people  lived  under  great  diversity  of  conditions. 

Xenophon  describes  an  Armenian  village  with  houses  un- 
derground entered  by  a  well,  with  passage  into  them  for  their 
cattle,  goats,  sheep  and  fowls.  There  was  a  head  man  of  the 
village.  Seventeen  colts  bred  as  a  tribute  for  the  king,  an<l 
provisions   in    plenty    and    considerable   variety    were    found. 


142  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

In  his  march  from  the  scene  of  the  battle  in  which  Cyrus  was 
killed  to  Colchis,  Xenophon  mentions  the  villages  of  the 
Medes,  Carducians  and  Armenians,  but  nowhere  isolated 
dwellings.  The  Persians  had  some  idea  of  established  law 
beyond  mere  custom,  and  of  the  steady  adherence  to  fixed 
rules  for  the  determination  of  rights.  Their  laws  were  pro- 
mulgated by  the  king,  recorded  by  scribes,  and  proclaimed 
throughout  the  empire.  There  were  judges  appointed  by  the 
king.  Herodotus  says  that  Cambyses,  wishing  to  marry  his 
sister,  a  thing  contrary  to  Persian  custom, 

"Called  together  the  regal  judges  and  put  it  to  them 
'whether  there  was  any  law  which  allowed  a  brother,  if  he 
wished,  to  marry  his  sister.'  Now  the  royal  judges  are  certain 
picked  men  among  the  Persians,  who  hold  their  office  for  life, 
(•r  until  they  are  found  guilty  of  some  misconduct.  By  them 
justice  is  administered  in  Persia  and  they  are  the  interpreters 
of  the  old  laws,  all  disputes  being  referred  to  their  decision. 
When  Cambyses  therefore  put  this  question  to  these  judges, 
they  gave  him  an  answer  which  was  at  once  true  and  safe, 
"they  did  not  find  any  law,"  they  said,  "allowing  a  brother  to 
lake  his  sister  to  wife,  but  they  found  a  law  that  the  king  of 
the  Persians  might  do  whatever  he  pleased." 

While  the  Persian  system  was  loose  and  imposed  but  little 
restraint  on  the  satraps,  either  in  the  exercise  of  their  author- 
ity over  the  people  under  them  or  in  organizing  a  revolt,  there 
were  some  regulations  tending  to  efficiency  and  stability  of 
the  government.  Royal  commissioners  were  sometimes  sent 
to  inspect  the  workings  of  the  government  throughout  the 
empire,  and  a  system  of  posts  was  maintained  by  which  dis- 
patches were  forwarded  rapidly.  The  garrisons  in  the  cita- 
dels, as  well  as  the  army  in  general,  were  under  the  command 
of  officers  appointed  by  the  king  and  not  subject  to  the  sat- 
raps. As  all  histories  deal  so  much  with  wars  and  so  little 
with  peaceful  conditions,  we  have  to  infer  what  took  place 
in  times  of  peace  from  the  conditions  described  during  times 
of  war.  In  the  perspective  war  occupies  a  greatly  exaggerated 
space  and  creates  the  impression  that  the  people  were  engaged 
in  little  else  than  fighting,  when  in  fact  peace  was  the  rule. 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  143 

The  earliest  Babylonians  were  temple  builders  and  devoted  to 
their  gods.  Strong  religious  tendencies  have  ever  been  char- 
acteristic of  the  people  of  all  the  portion  of  Asia  of  which 
we  are  now  treating.  The  idea  of  government  seems  to  have 
persistently  adhered  to  a  single  unlimited  monarch.  With 
the  grosser  forms  of  religious  worship  and  with  the  corrupted 
organizations  which  profess  the  purer  ones,  form  and  cere- 
monial always  fill  a  great  space.  These  forms,  to  be  impres- 
sive, must  be  marked  out  and  defined  by  fixed  rules,  to  which 
the  people  become  accustomed.  Revenues  to  maintain  the 
priesthood  and  the  temples  must  be  derived  by  a  system  of 
tributes,  paid  really  to  the  priests,  but  exacted  in  the  name 
of  the  deities.  The  alliance  between  the  sovereign  and  the 
priesthood  was  necessarily  close  and,  during  much  of  the 
time,  the  king  was  the  spiritual  as  well  as  the  temporal  head. 
In  ancient  Assyria  the  laws  were  promulgated  in  the  name 
of  Asshur,  the  head  of  their  pantheon,  as  the  Jews  used  the 
name  of  Jehovah  to  give  sanction  to  theirs.  The  temples  of 
the  Assyrian  and  Babylonian  gods  required  the  attendance  of 
a  numerous  priesthood,  withdrawn  partly  and  often  entirely 
both  from  participation  in  military  operations  and  ordinary 
callings.  The  system  of  irrigation  by  the  aid  of  artificial 
canals,  under  which  the  valleys  of  the  Tigris  and  Euphrates 
were  brought  to  a  high  state  of  cultivation,  evidences  settled 
social  order  for  a  considerable  period  prior  to  the  time  of 
Hammurabi.  The  cities  themselves  could  only  come  into 
existence  under  conditions  of  order  and  security  to  person 
and  property. 

Recent  researches  have  thrown  much  light  on  ancient  Baby- 
lonian institutions,  and  many  ancient  tablets  on  which  were 
written  deeds  and  contracts  of  various  kinds  have  been  ex- 
humed and  interpreted.  Judicial  functions  were  exercised  by 
the  priesthood,  who  also  acted  in  the  capacity  of  notaries 
and  witnesses  of  written  contracts,  and  the  parties  took  an 
oath  to  perform  the  contract,  the  whole  being  attested  by  the 
priest  and  other  witnesses.  A  deed  to  property  seems  to 
have  been  generally  treated  as  a  UK^rtgage,  which  could  be 
discharged   on   repayment  of   the   purchase   price,   unless   the 


144  EVOT.UTION  OF  GOVERNMENTS  AND  T.AWS 

vendor  expressly  renounced  the  right  to  redeem,  in  the  deed. 
Even  this  did  not  cut  off  the  right  of  his  heir  to  recover  the 
land  I)y  paying  back  the  price.  wSometimes  the  heirs  joined 
in  the  deed  in  order  to  cut  off  the  right  of  redemption.  Mort- 
gages w^ere  familiar,  the  earliest  form  being  that  in  which 
tile  use  of  land  was  transferred  to  the  lender  for  the  use  of 
the  money,  rent  being  set  off  against  interest.  When  the 
money  was  repaid  the  land  was  returned.  Mortgages  of  lands 
and  chattels  were  common.  The  business  of  banking  was 
well  developed  and  seems  to  have  been  largely  in  the  hands  of 
the  priesthood.  Interest  was  allowed  and  ])ott<)mry  bonds, 
Ijearing  a  high  rate  but  under  which  the  lender  got  nothing' 
in  case  of  loss  of  the  property  by  shipwreck,  were  common, 
as  also  were  contracts  of  hiring,  lease,  partnership  and  other 
business  transactions,  and  were  executed  with  that  freedom 
which  always  obtains  in  a  great  commercial  city. 

In  religion  these  people  were  polytheists,  and  their  pan- 
theon was  as  well  stocked  as  that  of  the  imaginative  Greeks. 
The  personal  qualities  attributed  to  their  several  gods  were 
so  similar  in  many  instances  as  to  suggest  identity.  The 
genius  for  city  building  moved  from  the  valleys  of  these 
rivers  to  the  countries  bordering  on  the  Euxine  and  Mediter- 
ranean seas  and  afterward  spread  wherever  the  Greeks  be- 
came dominant.  But,  so  far  as  we  know,  the  genius  for 
popular  government  in  cities  was  never  developed  in  Asia, 
except  in  the  Greek  cities  near  the  coast.  Among  the  rural 
population,  dwelling  in  their  villages,  tilling  the  soil  and  rear- 
ing domestic  animals,  there  was  a  degree  of  independence. 
Herodotus  speaks  of  the  Medes  revolting  from  the  Assyrians 
and  gaining  their  freedom,  after  having  been  subject  to  the 
latter  for  520  years,  and  then  tells  how  Duoces  by  playing 
the  part  of  an  upright  judge  succeeded  in  gaining  kingly 
power.  Herodotus  saw  through  Greek  eyes.  Though  Medes 
and  Persians  were  fond  of  liberty  perhaps  in  their  early 
history,  they  had  no  genius  for  the  establishment  of  any  form 
of  government  other  than  that  of  an  arbitrary  despotism. 


CHALDEA,  BABYLONIA,  JUDEA  AxXD  PERSIA  145 

JUDEA 

The  Jews  afford  us  through  the  Bible  a  later  and  more 
complete  system  of  written  laws  than  that  of  Hammurabi. 
Some  of  it  was  similar  to  and  borrowed  from  Egypt's  older 
civilization.  Some  of  it  was  drawn  from  Babylon.  All  their 
laws,  whether  prescribing  rules  of  conduct  governing  the  re- 
lations between  individuals  or  declaring  religious  duties  and 
imposing  burdens  for  the  support  of  the  priesthood,  were 
promulgated  as  divine  commands.  The  religious  veneration, 
with  which  everything  found  in  the  Hebrew  records  has  been 
regarded  by  the  Christian  world,  renders  it  difficult  to  dis- 
passionately attempt  to  separate  the  truth  of  history  from  the 
setting  of  oriental  exaggeration  in  which  it  is  contained. 
When  or  by  whom  the  writings  passing  under  the  name  of 
the  books  of  Moses  were  written  is  unknown.  It  can  be  said 
however,  with  confidence,  that  all  the  Old  Testament  has  come 
down  to  us  through  the  Jewish  priesthood.  Whether  the 
regulations  to  be  found  in  the  five  books  attributed  to  Moses 
were  in  fact  promulgated  by  him  or  not,  it  is  clear  that  there 
was  a  concurrence  in  establishing  these  laws  of  both  the  tem- 
poral and  the  spiritual  head  of  the  Israelites.  The  authority 
which  the  people  recognized  was  not  Moses  nor  Aaron,  but 
the  unseen  God,  from  whom  it  was  proclaimed  that  the  com- 
mands emanated.  The  purpose  of  all  conscientious  legisla- 
tors is  to  find  and  declare  the  rules  which  tend  to  promote  the 
welfare  of  all.  Many  of  the  regulations  contained  in  the 
laws  attributed  to  Moses  would  appear  to  have  but  little  ap- 
j)lication  to  a  wandering  horde,  such  as  the  Israelites  were  in 
their  journey  from  Egypt  to  Palestine.  It  is  not  recorded 
that  they  then  acquired  any  territory  for  the  purpose  of  per- 
manent occupancy,  yet  there  are  very  definite  laws  concerning 
real  property.  The  people  must  have  been  very  filthy  and 
immoral,  for  a  large  |)art  of  the  religious  observances  en- 
joined tend  to  cleanliness  and  orderly  conduct.  That  their 
wealth  consisted  largely  of  cattle,  sheep  and  other  live  stock 
is  evidenced  by  the  extent  of  the  regulations  concerning  such 
property.  Pigeons  seem  to  have  been  extcnsivclv  bred  and 
were  much  used  in  the  offerings. 


146  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  ten  commandments  are  written  as  the  words  of  God 
repeated  by  Moses.  The  first  four  relate  solely  to  matters  of 
religion,  but  are  regarded  as  authoritative  and  binding 
throughout  Christendom  today,  and  Sunday  is  observed  as  the 
Sabbath  of  his  law.  The  fifth  is  an  admonition  to  respect 
parents,  more  or  less  regarded.  The  remaining  five  are  uni- 
ersally  regarded  as  binding  moral  laws,  the  violation  of  either 
of  which  is  a  sin.  While  these  commandments  have  been 
held  of  such  high  authority  by  all  Christians,  the  other  laws 
declared  by  Moses  are  not  so  well  respected.  Slavery  even 
cf  Hebrews  was  recognized. 

"If  thou  buy  an  Hebrew  servant,  six  years  he  shall  serve 
and  in  the  seventh  he  shall  go  free  for  nothing."  H  bought 
with  a  wife,  the  wife  went  free  with  him,  but  if  given  a  wife 
by  the  master,  the  wife  and  her  children  belonged  to  the 
master,  "And  if  the  servant  shall  plainly  say  I  love  my 
master,  my  wife  and  my  children  I  will  not  go  out  free,  then 
his  master  shall  bring  him  unto  the  judges,  he  shall  also 
bring  him  to  the  door  or  unto  the  door  post;  and  his  master 
shall  bore  his  ear  through  with  an  awl,  and  he  shall  serve 
him  forever." 

Daughters  sold  as  servants  were  not  given  their  freedom 
but,  if  taken  to  wife  by  the  master  or  his  son,  were  to  be 
treated  as  wives  and  not  sold  to  a  strange  nation.  Murder  of 
malice  was  punished  with  death,  but  a  sanctuary  was  allowed 
for  excusable  homicide.  The  law  of  domestic  relations  in- 
culcated respect  for  both  father  and  mother.  Polygamy  was 
permitted  and  in  some  instances  almost  compulsory.  Mar- 
riage was  encouraged,  and  a  newly  married  man  was  exempt 
from  going  to  war  for  a  year.  Tf  brethren  dwelt  together  and 
one  of  them  died  childless,  the  surviving  brother  should  marry 
the  widow,  and  her  first  born  should  succeed  in  the  name  of 
the  dead  brother,  li  the  survivor  refused  to  marry  the  widow, 
she  might  call  him  before  the  elders  and  have  him  condemned, 
and  in  their  presence  she  shall  "Loose  his  shoe  from  ofif  his 
foot,  and  spit  in  his  face  and  shall  answer  and  say.  So  shall 
it  be  done  unto  that  man  that  will  not  build  up  his  brother's 
house." 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  147 

The  law  of  divorce  was  that,  "When  a  man  hath  taken  a 
wife  and  married  her,  and  it  come  to  pass  tkat  she  find  no 
favor  in  his  eyes,  because  he  hath  found  some  uncleanness  in 
her,  then  let  him  write  her  a  bill  of  divorcement  and  give  it 
in  her  hand  and  send  her  out  of  the  house."  She  may  then 
marry  again. ^ 

In  Numbers  chapter  v.  a  provision  is  made  for  testing  the 
faithfulness  of  a  woman  whose  husband  is  jealous  of  her, 
which  is  similar  to  and  probably  suggested  the  medieval  trials 
by  ordeal.  The  status  of  women  was  not  wholly  dissimilar 
to  that  under  the  English  common  law.  The  vows  (con- 
tracts) of  men  were  binding,  but  those  of  unmarried  daugh- 
ters might  be  annulled  by  the  fathers  and  of  married  women 
by  their  husbands  on  the  day  when  made,  otherwise  they 
should  stand.     Widows  and  divorced  women  were  bound. 

The  law  of  inheritance,  as  first  established,  seems  to  have 
recognized  the  rights  of  males  only,  but  on  the  complaint  of 
the  daughters  of  Zellophehad  it  was  amended  as  follows:  'Tf 
a  man  die  and  have  no  son,  then  ye  shall  cause  his  inheritance 
to  pass  unto  his  daughters.  And  if  he  have  no  daughters, 
then  ye  shall  give  his  inheritance  unto  his  brethren.  And  if 
he  have  no  brethren,  then  ye  shall  give  his  inheritance  unto 
his  father's  brethren.  And  if  his  father  have  no  brethren. 
then  ye  shall  give  his  inheritance  unto  his  kinsman  that  is  next 
to  him  of  his  family."^ 

There  was  a  settled  policy,  well  calculated  to  preserve  to 
each  family  its  inheritance  and  prevent  the  crafty  from  per- 
manently engrossing  the  land  or  chattel  property.  Every 
fiftieth  year  was  a  year  of  jubilee,  when  all  inheritances  nf 
land  went  back  to  the  vendor.  A  sale  could  only  be  made 
till  the  next  jubilee,  except  in  walled  towns,  where  a  redemp- 
tion in  a  year  was  allowed.  A  similar  principle  was  thus  ap- 
plied to  chattels. 

"At  the  end  of  every  seven  years  thou  shalt  make  a  release. 
And  this  is  the  manner  of  the  release.  Everyone  that  Icnd- 
cth  aught  unto  his  neighbor  shall  release  it,  he  shall  not  exact 

'  Dcut.  xxiv.  1-2. 
*  Numbers  xxvii. 


148  EVOLUTION  OF  GOVERN xMEXTS  AND  LAWS 

it  of  his  neighbor  or  of  his  brother  because  it  is  called  the 
Lord's  release.     Of  a  foreigner  thou  niayest  exact  it  again. "^ 

"And  six  years  thou  shalt  sow  thy  land  and  shalt  gather  in 
the  fruits  thereof.  But  the  seventh  year  thou  shalt  let  it  rest 
and  lie  still  that  the  poor  of  thy  people  may  eat :  and  what 
tlicy  leave  the  beasts  of  the  field  shall  eat.  In  like  manner 
thou  shalt  deal  with  thy  vineyard  and  thy  oliveyard."^ 

Usury  was  strictly  forbidden  except  when  taken  from 
strangers,  and  pledges  of  raiment  must  be  returned  by  sun- 
down. For  all  manner  of  trespasses  the  parties  should  come 
before  the  judges  and  the  party  condemned  should  pay  double. 
The  protection  of  servants  against  the  cruelty  of  masters  was 
exceedingly  meager.  "And  if  a  man  smite  his  servant  or  his 
maid  with  a  rod  and  he  die  under  his  hand,  he  shall  surely  be 
punished.  Notwithstanding  if  he  continue  a  day  or  two  he 
shall  not  be  punished  for  he  is  his  money." 

If  a  man  put  out  the  eye  or  tooth  of  a  man  or  maid  servant 
he  or  she  shall  go  free.  If  an  ox  kill  a  person  the  ox  must 
be  killed,  but,  if  the  ox  has  been  wont  to  push  with  his  horn 
in  time  past,  the  owner  shall  be  put  to  death  unless  he  pays 
his  ransom.  If  the  ox  kill  a  servant,  the  owner  of  the  ox 
shall  pay  the  master  thirty  shekels  of  silver.  A  thief  must 
pay  three  for  one  for  an  ox  and  four  for  one  for  a  sheep ; 
and  if  caught  in  the  act  and  killed,  no  blood  shall  be  shed 
for  him.  A  party  caught  with  stolen  property  must  pay 
double. 

The  criminal  law  was  ])rimitive  and  merciless.  The  punish- 
ments were  death,  maiming,  beating  or  fine.  The  following 
ofifenses  were  punished  with  death :  Murder,  manstealing, 
cursing  father  or  mother,  adultery  (both  parties),  witchcraft, 
lying  with  a  beast,  idolatry. 

"If  thy  brother  the  son  of  thy  mother  or  thy  son  or  thy 
daughter  or  the  wife  of  thy  bosom  or  thy  friend  who  is  as 
thine  own  soul,  entice  thee  secretly  saying,  Let  us  go  and 
serve  other  gods  which  thou  hast  not  knox^^n,  thou  nor  thy 
fathers,"  thou  shalt  not  consent  "But   thou  shall   surely  kill 

*  Deut.  XV.  1-2-3. 
•Exodus  x.xiii.  10  and  il. 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  149 

him,  tliine  hand  shall  be  first  upon  him  to  put  him  to  death 
and  afterward  the  hand  of  all  the  people."  The  father  and 
mother  of  a  "stubl)orn  and  rebellious  son"  might  bring  him 
before  the  elders  at  the  gate  of  the  city  and  have  him  con- 
demned to  be  stoned  to  death.  It  hardly  seems  possible  that 
there  could  be  use  for  such  a  law. 

For  offenses  deemed  of  inferior  degree  the  le.v  talionis  had 
full  sway,  and  is  nearly  identical  with  the  code  of  Hammurabi. 

"Eye  for  eye,  tooth  for  tooth,  hand  for  hand,  foot  for  foot, 
burning  for  burning,  wound  for  wound,  stripe  for  stripe." 

Very  definite  and  minute  provision  was  made  as  to  what 
might  be  eaten  and  as  to  the  manner  in  which  animals  should 
be  slaughtered  for  food  and  the  use  of  the  different  parts. 
These  were  in  part  sanitary  regulations  but  more  to  insure 
the  priests  their  living. 

"The  priests,  the  Levites  and  all  the  tribe  of  Levi  shall  have 
no  part  nor  inheritance  therein  with  Israel.  They  shall  eat 
the  offerings  of  the  Lord  made  by  fire  and  his  inheritance."^ 

By  far  the  greater  space  in  the  law  is  occupied  with  regu- 
lations relating  to  religion  and  religious  ceremonies,  and  great 
care  is  taken  to  insure  the  maintenance  and  influence  of  the 
priesthood.  All  the  books,  especially  that  of  Leviticus,  con- 
tain very  numerous  rules  relating  to  burnt  offerings,  meat 
offerings,  peace  oft'erings,  sin  offerings,  trespass  offeruigs, 
first  fruits  and  other  offerings  from  which  the  priests  were 
supported.  The  priestly  dress  was  regulated.  The  Levites 
were  assigned  cities  (villages)  with  suburbs  for  their  cattle, 
aniung  which  were  six  cities  of  refuge  for  criminals,  into 
which  the  avenger  of  blood  might  not  j)ursue  one  guilty  of 
homicide,  unless  committed  with  premediation.  The  priest- 
hood was  the  instrumentality  mainly  relied  on  by  Moses  for 
the  maintenance  of  his  system,  which  in  this  respect  strongly 
resembled  the  Egyptian.  The  observance  of  his  laws  would 
keep  the  priests  in  close  contact  with  all  the  people  substan- 
tially all  the  time,  and  obedience  to  all  these  minute  regula- 
tions was  enjoined  as  a  religious  duty. 

Among   the   most   remarkable    provisions    in    the    laws    of 

•  Dent,  xviii.  9. 


ISO  F.VOLUTION  OF  GOVERNMENTS   AND  LAWS 

A  loses  are  those  imposing  restrictions  on  the  rulers,  and  pro- 
viding for  the  promulgation  and  perpetuation  of  a  code  of 
written  laws  by  which  the  rights  of  all  were  to  be  measured. 
The  people  were  permitted  to  have  kings,  like  as  other  na- 
tions, but  with  limitations  on  their  powers, 

"But  he  shall  not  multiply  horses  to  himself  nor  cause  the 
people  to  return  to  Egypt  to  the  end  that  he  should  multiply 
horses,  forasmuch  as  the  Lord  hath  said  unto  you,  Ye  shall 
henceforth  return  no  more  that  way.  Neither  shall  he  multi- 
])ly  wives  to  himself  that  his  heart  turn  not  away,  neither  shall 
he  greatly  multiply  silver  and  gold.  And  it  shall  be  when  he 
sitteth  upon  the  throne  of  his  kingdom,  that  he  shall  write  him 
a  copy  of  this  law  in  a  book,  out  of  that  which  is  before  the 
priests,  the  Levites.  And  it  shall  be  with  him,  and  he  shall 
read  therein  all  the  days  of  his  life."^ 

"Judges  and  officers  shalt  thou  make  thee  in  all  thy  gates, 
which  the  Lord  thy  God  giveth  thee  throughout  thy  tribes, 
and  they  shall  judge  the  people  with  just  judgment.  Thou 
shalt  not  wrest  judgment,  thou  shalt  not  respect  persons, 
neither  take  a  gift,  for  a  gift  doth  blind  the  eyes  of  the  wise 
and  pervert  the  words  of  the  righteous."^ 

Appeals  from  inferior  to  superior  courts  were  provided  for. 

"If  there  arise  a  matter  too  hard  for  thee  in  judgment,  be- 
tween blood  and  blood,  between  plea  and  plea  and  between 
stroke  and  stroke,  being  matter  of  controversy  within  thy 
gates,  then  shalt  thou  arise  and  get  thee  up  into  the  place 
which  the  Lord  thy  God  shall  choose.  And  thou  shalt  come 
unto  the  priests,  the  Levites,  and  unto  the  judge  that  shall  be 
in  those  days  and  inquire,  and  they  shall  shew  thee  the  sen- 
tence of  judgment.  And  thou  shalt  do  according  to  the 
sentence  which  they  of  that  place  which  the  Lord  shall  choose 
shall  shew  thee."^  In  the  determination  of  criminal  causes 
the  rule  concerning  the  amount  of  evidence  required  was, 
"One  witness  shall  not  rise  up  against  a  man  for  any  iniquity 
or  for  any  sin  that  he  sinneth;  at  the  mouth  of  two  wit- 

'  Deut.  xvii.  i6  and  19.  » Deut.  xvii.  8-9-10. 

*  Devit.  xxi.  18-19. 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  151 

nesses  or  at  the  mouth  of  three  witnesses  shall  the  matter  be 
estabhshed."^" 

Ahhough  the  date  of  Moses'  death  is  assigned  to  about  the 
year  1450  B.C.  and  ahhough  the  httle  nation  for  which  he 
framed  his  laws  was  often  at  the  mercy  of  its  foes,  in  cap- 
tivity and  finally  scattered  over  the  face  of  the  earth  as  out- 
casts, his  laws  are  to  be  found  at  this  day  in  the  households 
of  millions  of  alien  people  in  apparently  complete  form.  This 
seems  in  some  measure  due  to  the  provisions  made  by  him 
for  their  preservation,  but  more  to  their  religious  sanction 
and  the  promulgation  of  the  laws  as  the  word  of  the  God 
who  watched  over  the  Israelites  as  his  chosen  people  and  yet 
more  to  the  spread  of  Christianity.  The  people  were  com- 
manded by  Moses  after  they  should  pass  over  Jordan  to  set 
up  great  stones  and  plaster  them  and  "write  upon  the  stones 
all  the  words  of  this  law  very  plainly."  Blessings  were  called 
down  on  all  who  obeyed  and  curses  on  those  who  disobeyed. 
''And  Moses  wrote  this  law  and  delivered  it  unto  the  priests, 
the  sons  of  Levi,  which  bore  the  ark  of  the  covenant  of  the 
Lord,  and  unto  all  the  elders  of  Israel  and  Moses  commanded 
them  saying,  At  the  end  of  every  seven  years  in  the  solemnity 
of  the  year  of  release  in  the  feast  of  the  tabernacle,  when  all 
Israel  is  come  to  appear  before  the  Lord  thy  God  in  the  place 
which  he  shall  choose,  thou  shalt  read  this  law  before  all 
Israel  in  their  hearing."^ ^ 

In  the  early  days  authority  was  exercised  by  the  priests,  and 
the  general  in  time  of  war,  but  there  was  no  king. 

'Tn  those  days  there  was  no  king  in  Israel,  every  man  did 
that  which  was  right  in  his  own  eyes."^- 

(B.C.  1400.)  Afterward  when  Samuel  was  chief  priest  the 
people  wanted  a  king, 

"Then  all  the  elders  of  Israel  gatliered  themselves  together 
and  came  to  Samuel  unto  Ramah,  and  said  unto  him,  Be- 
hold thou  art  old  and  thy  sons  walk  not  in  thy  ways,  now 
make  us  a  king  to  judge  us  like  all  the  nations.     Vmt  the  thing 

''Deut.  xix.    15.  "Judges  xxi.  25. 

"  Deut.  xxxi.  9-10-11. 


132  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

displeased  Samuel."     He  told  them  the  evil  consequences  of 
having  a  king  but  they  insisted. ^^ 

Saul  was  then  made  king.  "And  all  the  people  shouted  and 
said  God  save  the  king."  Saul's  auth(^rity  was  not  fully  rec- 
ognized however,  and  it  was  not  till  David  was  anointed  that 
the  kingly  authority  was  established.  Under  his  son  Solomon 
the  nation  attained  its  maximum  of  wealth  and  power,  which, 
as  compared  with  that  of  either  Egypt,  Babylon,  Assyria  or 
Persia  at  its  best,  was  not  great.  Though  the  written  law  of 
Moses  seems  to  have  been  preserved  intact,  it  does  not  ap- 
pear to  have  ever  been  very  rigidly  observed,  nor  to  have 
been  eminently  successful  as  a  religious  establishment.  Even 
Solomon,  the  model  of  all  Hebrew  Kings,  violated  the  law  by 
greatly  multiplying  his  riches,  and  by  taking  to  himself  a 
vast  number  of  wives  (700),  and  concubines  (300),  In  the 
accumulation  of  his  harem  he  did  not  confine  himself  to  selec- 
tions from  the  twelve  tribes,  but  gathered  from  among  the 
heathens,  and  as  a  result  became  tolerant  of  all  the  gods  and 
erected  places  for  the  worship  of  other  Gods  besides  Jehovah. 
Throughout  much  of  the  Old  Testament  there  is  constant 
recognition  of  the  existence  of  Baal  and  numerous  other  gods, 
but  Jehovah  was  the  special  god  of  Israel,  from  whom  alone 
they  might  hope  for  help.  The  Bible  records  many  times 
when  the  people  generally  abandoned  the  worship  of  God  and 
adopted  that  of  the  gods  of  other  people.  The  lesson  con- 
stantly taught  is  that  this  was  always  followed  by  disaster, 
and  that  prosperity  only  came  through  strict  adherence  to  the 
national  worship.  The  history  of  the  Israelites  from  the 
time  of  Moses  to  the  days  of  Christ,  is  an  alternation  of  peace 
and  war,  adherence  to  the  Mosaic  law  and  abandonment  of 
it,  success  and  adversity,  independence  and  subjection  to  for- 
eign power,  corresponding  in  all  material  respects  to  that  of 
surrounding  nations.  In  morals  they  do  not  seem  to  have 
been  materially  above  or  below  the  general  average  of  their 
neighbors.  In  power  and  material  development  they  were 
quite  insignificant  as  compared  with  the  Chaldeans,  Babylon- 

"  I   Samuel  viii. 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  153 

ians,  Assyrians,  Persians  or  Egyptians.  Jerusalem  at  its 
best  was  but  a  village  as  compared  with  Babylon  or  Nineveh. 
Yet  the  influence  of  this  small  nation  on  succeeding  genera- 
tions has  vastly  exceeded  that  of  all  the  others  combined. 
This  influence  is  due,  first  to  the  preservation  of  the  Mosaic 
law  and,  second  but  far  more,  to  the  Christian  teachings  of 
the  new  law  of  love  and  mutual  help. 

We  regard  the  present  as  an  age  of  invention  in  Europe  and 
America.  It  is  not  the  first  however.  While  we  cannot  defi- 
nitely fix  time  or  place  nor  speak  on  the  subject  with  absolute 
certainty,  all  we  do  know  indicates  that  there  was,  before  the 
days  of  Moses,  a  period  of  great  mental  activity  and  invention. 
The  foundations  of  modern  achievements  seem  to  have  been 
laid  somewhere  in  or  near  the  regions  treated  of  in  this 
chapter.  The  art  of  smelting  iron,  copper  and  many  other 
metals  was  carried  to  an  advanced  state  of  perfection.  Archi- 
tecture produced  immense  structures  in  which  the  beautiful 
sought  expression  in  accordance  with  the  taste  of  the  times. 
The  art  of  weaving  fabrics  was  developed.  Hydraulic  en- 
gineering achieved  triumphs  little  if  any  short  of  those  boasted 
by  modern  engineers,  and  the  rich  country  of  the  Tigris  and 
Euphrates,  which  n(jw  lies  desolate  from  lack  of  the  ancient 
system  by  which  the  waters  of  the  rivers  were  utilized,  was 
then  a  vast  garden,  rivaling  if  not  leading  in  protluctiveness 
the  most  favored  portions  of  the  globe  in  any  age.  But  more 
valuable  than  all  these  was  the  invention  of  letters,  since 
changed  in  form  and  number  by  different  people,  yet  afford- 
ing the  foundation  of  all  written  language  in  the  western 
world.  Of  all  the  literary  people  the  Chinese  alone  can  claim 
the  invention  of  another  separate  and  complete  system  of 
written  characters.  Whether  any  of  these  inventions  were 
made  under  the  despotic  governments  of  which  history  in- 
forms us  cannot  be  told.  Letters  do  not  record  the  time, 
place  or  manner  of  their  own  creation. 

It  seems  strange  that  so  little  definite  history  or  description 
of  the  government  of  the  Phoenicians  can  be  given.  Thev 
were  rcnownrcl  frir  manufactures  and  commerce.  Their  ships 
went  to  all  jjorts  of  the  Mediterranean  Sea,  but  their  colonies 


154  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

were  mostly  on  the  African  side.  The  accounts  of  Carthage 
received  from  Roman  sources  are  doubtless  much  colored  by 
their  hostility. 

The  dynasty  established  as  a  sequence  of  Alexander's  con- 
quest did  not  long  retain  marked  Greek  characteristics,  but 
soon  degenerated  and  became  in  fact  a  typical  oriental  despot- 
ism. The  Greeks  adopted  Persian  customs  rather  than  im- 
posed their  own.  There  were  Greek  cities  along  the  coasts 
where  Greek  civilization  prevailed  for  many  centuries.  Fol- 
lowing the  downfall  of  Macedonian  supremacy  came  the  Ro- 
man conquest  of  the  country  west  of  the  Euphrates.  Toward 
the  east  the  Persians  with  varying  fortunes  and  under  nu- 
merous dynasties  have  during  most  of  the  time  maintained 
their  supremacy.  But  whether  the  ruler  was  Persian,  Mede, 
Bactrian,  Turk,  Mogul  or  Moslem,  he  has  always  been  a 
despot,  sometimes  a  wellmeaning  and  sometimes  an  able  one, 
but  usually  a  cruel,  idle  voluptuary.  The  advent  of  Christ 
had  little  effect  on  the  political  conditions  of  the  country  of 
his  birth.  Not  till  the  Crusades  was  an  attempt  made  to  as- 
sert temporal  authority  there  in  his  name.  The  influence  of 
his  teachings,  though  not  wholly  wasted  in  Asia,  was  far 
less  potent  than  that  of  Mohammed,  whose  system  was  bet- 
ter suited  to  oriental  tastes  and  character. 

The  difficulty  with  all  their  systems  was  that  no  effectual 
check  was  provided  against  the  exercise  of  arbitrary  power. 
Those  who  are  inclined  to  clamor  for  speedy  justice  may  read 
of  striking  illustrations  of  it  in  the  book  of  Daniel,  where  the 
story  is  told  of  the  retributive  justice  meted  out  to  Daniel's 
accusers,  who  were  thrown  into  the  lion's  den  and  torn  to 
pieces  by  the  king's  command,  or  in  the  book  of  Esther  in 
which  is  recorded  the  hanging  of  Haman  on  the  gallows  he 
erected  for  Mordecai.  and  the  license  given  to  and  used  by 
the  Jews  by  command  of  Ahasuerus  to  slaughter  their  ene- 
mies. The  king  and  his  satraps  were  really  restrained  only 
by  their  own  feelings  or  interests  and  constantly  exercised 
arbitrarily  the  power  to  put  to  death,  often  in  cruel  ways,  and 
to  seize  the  property  of  their  subjects. 

The  theory  of  the  Persian  government  remained  despotic 


CHALDEA,   BABYLONIA,  JUDEA  AND   PERSIA  155 

till  very  recent  times,  but  modern  influences  have  been  felt  in 
the  land  of  the  ancient  despotism.  On  August  5,  1906 
Muzafifar-ud-Din,  Shah,  issued  a  rescript  undertaking  to  form 
a  national  council — Majlis — representing  the  whole  people. 
The  Majlis  was  elected  and  opened  by  the  shah  in  person  on 
October  7,  1906.  Muzaffer  died  in  January  1907  and  his  son 
Mohammed  Ali  Mirza  on  his  accession  to  the  throne  pledged 
himself  to  support  the  constitution.  A  revolution  occasioned 
by  a  clash  between  the  shah  and  the  Majlis  resulted  in  the 
deposition  of  Ali  and  the  choice  of  his  young  son  Ahmad 
Mirza.  On  November  15,  1909  a  newly  elected  Majlis  was 
opened  by  the  shah. 

The  Majlis  is  composed  of  representatives  of  the  dominant 
classes  and  numbers  162  members  (sixty  from  Teheren  and 
102  from  the  provinces).  Electors  must  be  males,  Persian 
subjects  not  less  than  twenty-five  years  old  and  of  good 
repute.  The  executive  government  is  carried  on  by  a  cabinet 
of  eight  ministers. 


CHAPTER  Vlll 

Arabia 

Were  it  not  for  the  marvelous  career  and  lasting  influence 
on  a  large  portion  of  the  human  race  of  one  man  as  a  relig- 
ious teacher  and  law  giver,  Arabia  would  be  given  but  small 
space  in  this  work.  The  people  were  allied  on  one  side  with 
the  neighboring  Asiatic  population  and  classed  as  of  Semitic 
stock,  and  on  the  other  were  intermixed  with  African  blood 
of  the  Egyptian  and  Abyssinian  stocks.  Nevertheless  the 
Arab  is  of  a  type  quite  as  well  marked  as  any  of  his  neighbors 
and  has  been  so  for  untold  centuries.  Modes  of  life  and 
social  systems  appear  to  have  been  moulded  by  natural  con- 
ditions. In  Yemen,  which  has  ever  been  rich  and  fruitful, 
the  people  have  dwelt  in  settled  communities,  culti\ated  the 
soil  and  maintained  a  strong  monarchical  government,  which 
is  said  to  have  lasted  2500  years  before  Mohammed,  and  to 
have  extended  its  power  over  most  of  the  south  half  of  the 
peninsula.  In  the  interior  and  desert  portions,  where  settled 
agriculture  is  impossible,  but  precarious  pasturage  affords 
sustenance  for  flocks  and  herds,  the  wandering  tent  dwelling 
Bedouins  moved  from  place  to  place  with  their  live  stock, 
recognizing  no  settled  government  beyond  their  tribal  leaders. 
Though  brought  in  contact  with  the  ancient  civilizations  of 
Egypt,  Babylonia  and  India  through  its  traders,  so  far  as 
known  Arabia  developed  and  preserved  its  own  peculiar  types. 
Our  common  system  of  expressing  numbers  by  figures  is  per- 
haps the  only  Arabic  invention  with  which  we  are  familiar, 
but  it  may  well  be  that  this  is  not  all  for  which  we  are  in- 
debted to  them,  so  meager  and  imperfect  are  the  records  of 
[)ast  events. 

Mohammed  grew  up  under  a  tribal  system  which  recog- 
nized no  superior  authority.  Mecca,  though  a  city  of  no 
great  size,   was  occupied  by  clans  having  no  common  head. 

156 


ARABIA  157 

The  Koraish,  by  which  general  term  the  clans  in  and  about 
Mecca  were  known,  were  traders  whose  caravans  brought 
goods  from  Syria  and  Persia,  which  were  sold  at  the  fairs 
in  Mecca.  Knowledge  of  reading  and  writing  was  general 
among  them. 

Neither  the  Abyssinian  Christians  nor  the  Persian  fire 
worshipers  had  been  able  to  subjugate  Mecca.  Mohammed's 
parents  died  during  his  early  youth  and  he  grew  up  in  ex- 
treme poverty  first  in  his  grandfather's,  and  then  his  uncle's, 
family.  At  twenty-five  he  entered  the  service  of  Khadija,  a 
wealthy  widow  for  whom  he  traveled  to  Palestine  and  Syria. 
Afterward  he  married  her.  He  became  familiar  with  the 
Hebrew  scriptures  and  traditions  and  with  the  tenets  of  the 
Christians.  To  the  many  forms  of  idolatry  which  he  found 
prevailing,  not  only  among  the  followers  of  ancient  Arabic 
faiths,  but  also  among  the  Christians  of  his  day,  he  con- 
ceived a  most  intense  aversion.  He  was  a  profound  believer 
in  the  unity  of  God.  Mohammed  laid  no  claim  to  divinity, 
not  even  to  direct  personal  communion  with  God,  but  to  hav- 
ing received  the  words  of  the  Koran  through  the  angel 
Gabriel.  He  posed  merely  as  the  apostle  of  God.  He  did 
not  profess  to  proclaim  a  new  religion,  but  merely  to  restore 
in  its  purity  the  ancient  Jewish  monotheism.  He  gave  the 
great  characters  of  the  Bible  recognition  as  prophets,  and 
while  he  denied  the  divinity  of  Christ,  his  authority  as  a 
prophet  and  teacher  is  maintained.  The  Koran,  though  re- 
garded by  Mohammedans  as  a  wonderful  literary  production, 
contains  little  to  admire,  when  translated  into  English.  Its 
repetition  of  the  Bible  stories,  with  variations  of  form,  are 
tedious  and  uninstructive.  The  strength  of  his  revelations 
seems  to  lie  in  the  vigorous  proclamation  of  the  unity  and 
power  of  God,  and  in  the  rewards  offered  to  the  true  believers 
of  a  paradise  suited  to  the  sensual  desires  of  the  people  to 
whom  he  spoke,  and  the  hot  torments  of  hell  denounced  as  a 
punishment  to  those  who  refused  to  accept  the  Koran.  The 
God  he  proclaimed  was  an  intensely  personal  one,  who  took 
a  keen  and  active  interest  in  human  affairs  and  rewarded  and 
punished  in  ample  measure.     His  doctrines  tended  directly  to 


158  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  establishment  of  civil  power  under  religious  sanction,  and 
Mohammed  stands  out  in  bold  relief  as  the  founder  of  a 
religious  sect,  who  was  at  the  same  time  the  founder  of  an 
empire  over  subjects  unaccustomed  to  submit  to  despotic  rule. 
Although  the  Koran  is  the  law  for  all  Mohammedan  countries 
and  is  accepted  as  based  on  divine  authority,  it  is  exceedingly 
meager  in  its  rules  of  conduct,  and  is  adapted  to  such  condi- 
tions as  the  prophet  was  familiar  with.  The  moral  tone  is 
superior  to  most  of  the  Old  Testament,  but  quite  inferior  to 
that  of  the  New.  As  in  the  laws  of  Moses,  the  first  and  chief 
concern  was  to  provide  for  the  support  and  maintenance  of 
the  religion.  From  first  to  last  the  worship  of  the  true  and 
living  God  is  enjoined,  rewards  are  promised  for  the  true 
believers  and  punishments  denounced  for  the  infidels. 

The  religious  teachings  and  the  code  of  laws  put  forth  by 
Mohammed  can  best  be  studied  in  the  Koran,  in  which  is 
written  the  revelations  which  Mohammed  claimed  were  sent 
down  to  him.  The  following  extracts  from  the  text  will  give 
a  clearer  idea  of  Mohammed's  system  than  any  summary  of 
or  comment  on  the  Koran.  The  great  influence  Mohammed 
has  exerted  over  a  large  part  of  the  earth  through  so  many 
centuries,  in  religion  and  as  a  law-giver,  render  his  works  of 
peculiar  interest.  The  fanatical  spirit  which  animated  his 
followers  is  expressed  in  the  following  text:  '-When  ye  en- 
counter the  unbelievers  strike  off  their  heads  until  ye  have 
made  a  great  slaughter  among  them,  and  bind  them  in  bonds ; 
and  either  give  them  a  free  dismission  afterwards  or  exact  a 
ransom  until  the  war  shall  have  laid  down  its  arms."^  "And 
as  to  those  who  fight  in  defense  of  God's  true  religion,  God 
will  not  suffer  their  works  to  perish;  he  will  guide  them  and 
dispose  their  hearts  aright;  and  he  will  lead  them  into  Para- 
dise of  which  he  hath  told  them,  God  hath  preferred  those 
who  fight  for  the  faith  above  those  who  are  still  by  adding 
unto  them  a  great  reward."^ 

"The  description  of  Paradise  which  is  promised  unto  the 
pious,  therein  are  rivers  of  incorruptible  waters  and  rivers  of 

'  Ch.  47.     Sales'  Koran. 
^M  Ch.  4,  p.  6s. 


ARABIA  159 

milk  the  taste  whereof  changeth  not,  and  rivers  of  wine, 
pleasant  unto  those  who  drink,  and  rivers  of  clarified  honey, 
and  therein  shall  they  have  plenty  of  all  kinds  of  fruits,  and 
pardon  from  their  Lord.  Shall  the  men  for  whom  these 
things  are  prepared  be  as  he  who  must  dwell  for  ever  in 
hell  fire  and  will  have  the  boiling  water  given  them  to  drink 
which  shall  burst  their  bowels."  "Verily  this  present  life  is 
only  a  play  and  a  vain  amusement;  but  if  ye  believe  and  fear 
God  He  will  give  you  your  rewards.  He  doth  not  require  of 
you  your  whole  substance,  if  He  should  require  the  whole  of 
you  and  earnestly  press  you,  ye  would  become  niggardly  and 
it  would  raise  your  hatred  against  His  apostles.  Behold  ye 
are  those  who  are  invited  to  expend  part  of  your  substance 
for  the  support  of  God's  true  religion;  and  there  are  some 
of  you  who  are  niggardly.  But  whosoever  shall  be  niggardly 
shall  be  niggardly  toward  his  own  soul."^ 

"These  are  they  who  shall  approach  near  unto  God,  they 
shall  dwell  in  gardens  of  delight.  .  .  .  Reposing  on  couches 
adorned  with  gold  and  precious  stones,  sitting  opposite  to  one 
another  thereon.  Youths  which  shall  continue  in  their  bloom 
forever  shall  go  round  about  to  attend  them  with  goblets  and 
beakers  and  a  cup  of  flowing  wine ;  their  heads  shall  not  ache 
by  drinking  the  same  neither  shall  their  reason  be  disturbed ; 
and  with  fruits  of  the  sorts  which  they  shall  choose  and  the 
flesh  of  herds  of  the  kinds  which  they  shall  desire,  and  there 
shall  accompany  them  fair  damsels  having  large  black  eyes 
resembling  pearls  hidden  in  their  shells,  as  a  reward  for  that 
which  they  shall  have  wrought.  They  shall  not  hear  therein 
any  vain  discourse  or  any  charge  of  sin  but  the  only  saluta- 
tion Peace,  Peace.  And  the  companions  of  the  right  hand, 
.  .  .  shall  have  their  abode  among  the  lote  trees  free  from 
thorns  and  trees  of  mauz  loaded  regularly  with  their  produce 
from  top  to  bottom,  under  an  extended  shade  near  a  flowing 
water  and  amidst  fruits  in  abundance  which  shall  not  fail  nor 
shall  be  forbidden  to  be  gathered ;  and  they  shall  repose 
themselves  on  lofty  beds.     Verily  we  have  created  the  damsels 

*Id.  Ch.  4. 


lOo  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

of  paradise  by  a  peculiar  creation,  and  vvc  have  made  tiicin 
virgins,  beloved  by  their  husbands  of  equal  age  with  them, 
for  the  delight  of  the  companions  of  the  right  hand."'^ 

"And  they  who  believe  not  shall  have  garments  of  fire 
fitted  unto  them ;  boiling  water  shall  be  poured  on  their  heads, 
their  bowels  shall  be  dissolved  thereby  also  their  skins  shall 
be  beaten  with  maces  of  iron."^ 

The  duty  of  giving  alms  is  frecpiently  enjoined,  and  this 
generally  meant  making  contrilnitions  for  the  support  of  the 
faith.  Mohammed  himself  applied  all  his  receipts  to  the  use 
of  his  followers,  with  no  desire  to  ruiiass  wealth,  and  alms 
with  him  really  meant  charitable  contrilnitions,  except  when 
used  to  propagate  the  word  with  the  sword.  The  doctrines 
he  taught  were  not  above  the  comprehension  of  his  followers, 
and  the  rewards  promised  were  of  the  sort  most  pleasing  to 
them.  The  punishments  denounced  against  unbelievers  were 
well  calculated  to  terrify,  and  to  these  persuasions  he  added 
a  vigorous  policy  for  organization  and  extension  of  his  tem- 
poral power.     The  command  to  pray  was  peremptory. 

"Regularly  perform  thy  prayer  at  the  declension  of  the 
sun,  at  the  first  darkness  of  the  night  and  the  prayer  of  day 
break,  for  the  prayer  of  day  break  is  borne  witness  unto  by 
the  angels.  And  watch  some  part  of  the  night  in  the  same 
exercise  as  a  work  of  super-errogation  for  thee ;  peradventure 
thy  Lord  will  raise  thee  to  an  honorable  station,  and  say  O ! 
Lord  cause  me  to  enter  with  a  favorable  entry,  and  cause  me 
to  come  forth  with  a  favorable  coming  forth,  and  grant  me 
from  thee  an  assisting  power.  And  say  truth  is  come  and 
falsehood  is  vanished;  for  falsehood  is  of  short  continuance."^ 

The  domestic  customs  prevailing  in  Arabia  in  the  time  of 
Mohammed  were  substantially  like  those  of  ancient  Judea, 
Egypt  and  Persia  and  his  teachings  did  not  call  for  radical 
changes.  "And  give  the  orphans  when  they  come  of  age 
their  substance,  and  render  them  not  in  exchange  bad  for 
good,  and  devour  not  their  substance  by  adding  it  to  your 
substance,   for  this  is  a  great  sin.     And  if  ye  fear  that  ye 

'Id.  Ch.  56.     'Id.  Ch.  22.     "Id.  Ch.  17. 


ARABIA  i6i 

shall  not  act  with  equity  towards  orphans  of  the  female  sex, 
take  in  marriage  of  such  other  women  as  please  you,  two  or 
three  or  four  and  not  more.  But  if  ye  fear  that  ye  cannot 
act  equitably  toward  so  many,  marry  one  only  or  the  slaves 
which  ye  shall  have  acquired.  This  will  be  easier  that  ye 
swerve  not  from  righteousness.  And  give  women  their 
dowry  freely;  but  if  they  voluntarily  remit  any  part  of  it 
unto  you,  enjoy  it  with  satisfaction  and  advantage.  And 
give  not  unto  those  who  are  weak  of  understanding  the  sub- 
stance which  God  hath  appointed  you  to  preserve  for  them, 
but  maintain  them  thereout  and  clothe  them  and  speak  kindly 
unto  them,  and  examine  the  orphans  until  they  attain  the  age 
of  marriage,  but,  if  ye  perceive  they  are  able  to  manage 
their  affairs  well,  deliver  their  substance  unto  them ;  and  waste 
it  not  extravagantly  or  hastily,  because  they  grow  up.  Let 
him  that  is  rich  abstain  entirely  from  the  orphans  estate;  and 
let  him  who  is  poor  take  thereof  according  to  that  which  shall 
be  reasonable.  And  when  ye  deliver  their  substance  unto 
them  call  witnesses  in  their  presence.  .  ,  .  God  hath  thus 
commanded  you  concerning  your  children.  A  male  shall  have 
as  much  as  the  share  of  two  females,  but  if  they  be  females 
only  and  above  two  in  number,  they  shall  have  two  third  parts 
of  what  the  deceased  shall  leave,  and  if  there  be  but  one 
she  shall  have  the  half,  and  the  parents  of  the  deceased  shall 
have  each  of  them  a  sixth  part  of  what  he  shall  leave  if  he 
have  a  child,  but  it  he  have  no  child  and  his  parents  be  his; 
heirs  then  his  mother  shall  have  the  third  part.  And  if  he 
have  brethren  then  his  mother  shall  have  a  sixth  part  after 
the  legacies  which  he  shall  bequeath  and  his  debts  be  paid. 
.  .  .  Moreover  ye  may  claim  half  of  what  your  wives  shall 
leave  if  they  have  no  issue,  but  if  they  have  issue,  then  ye 
shall  have  the  fourth  part  of  what  they  shall  leave  after  the 
legacies  which  they  shall  bequeath  and  the  debts  be  paid. 
They  also  shall  have  the  fourth  part  of  what  ye  shall  leave 
in  case  ye  have  no  issue,  but  if  ye  have  issue,  then  they  shall 
have  the  eighth  part  of  what  ye  shall  leave  after  the  legacies 
which  ye  shall  leave  and  the  debts  be  paid.  And  if  a  man's 
or  woman's  substance  be  inhcritt'd  b\-  distant  rciatinn,  and  ho 


i62  EVOLITTION  OF  GOVERNMENTS  AND  LAWS 

or  she  have  a  brother  or  sister  each  of  them  too  shall  have  a 
sixth  part  of  the  estate.  ...  If  any  of  your  women  be  guilty 
of  whoredom  produce  four  witnesses  from  among  you 
against  them,  and  if  they  bear  witness  against  them  imprison 
them  in  separate  apartments  until  death  release  them  or  God 
affordeth  them  a  way  to  escape.  And  if  two  of  you  commit 
the  like  wickedness  punish  them  both,  but  if  they  repent  and 
amend,  let  them  both  alone;  for  God  is  easy  to  be  reconciled, 
and  merciful.  Verily  repentance  will  be  accepted  with  God, 
from  those  who  do  evil  ignorantly  and  then  repent  speedily, 
unto  them  will  God  be  turned  for  God  is  knowing  and  wise. 
Fhit  no  repentance  shall  be  accepted  from  those  who  do  evil 
until  the  time  when  death  presenteth  itself  unto  one  of  them 
and  he  saith  verily,  I  repent  now;  .  .  .  O  true  believer  it  is 
not  lawful  for  you  to  be  heirs  of  women  against  their  will, 
nor  to  hinder  them  from  marrying  others  that  ye  may  take 
away  part  of  what  ye  have  given  them  in  dowry ;  unless  they 
have  been  guilty  of  a  manifest  crime;  but  converse  kindly 
with  them.  ...  If  ye  be  desirous  to  exchange  a  wife  for 
another  wife  and  ye  have  already  given  one  of  them  a  talent, 
take  not  away  anything  therefrom.  .  .  .  Marry  not  women 
whom  your  fathers  have  had  to  wife;  for  this  is  uncleanness 
and  an  abomination  and  an  evil  way.  Ye  are  forbidden  to 
marry  your  mothers  and  your  daughters  and  your  sisters  and 
\nur  aunts,  both  on  the  fathers  and  on  the  mothers  side,  and 
your  brothers  daughters  and  your  sisters  daughters,  and  your 
mothers  who  have  given  you  suck  and  your  foster  sisters 
and  your  wives  mothers  and  your  daughters  in  law  which 
are  under  your  tuition,  born  of  your  wives,  .  .  .  and  the 
wives  of  your  sons  who  proceed  from  your  loins  and  ye  are 
also  forbidden  to  take  to  wife  two  sisters.  Ye  are  also  for- 
bidden to  take  to  wife  free  women  who  are  married,  except 
those  women  whom  your  right  hand  shall  possess  as  slaves. 
.  .  .  Whoso  among  you  hath  not  means  sufficient  that  he 
may  marry  free  women  who  are  believers,  let  him  marry  with 
such  of  your  maid  servants  whom  your  right  hands  possess 
as  are  true  believers.  .  .  .  Serve  God  and  associate  no  crea- 
ture with  Him,  and  show  kindness  unto  parents,  and  relatives 


ARABIA  163 

and  orphans  and  the  poor,  and  your  neighbor  who  is  kin  to 
you,  and  also  your  neighbor  who  is  a  stranger,  and  your 
familiar  companion  and  the  traveller  and  the  captives  whom 
your  right  hand  shall  possess."" 

Husbands  were  allowed  to  divorce  their  wives  at  will,  the 
only  restrictions  being  as  to  the  time  of  putting  them  away, 
which  could  not  be  during  pregnancy.  "And  speak  unto  the 
believing  women  that  they  restrain  their  eyes,  and  preserve 
their  modesty  and  discover  not  their  ornaments,  except  what 
necessarily  appeareth  thereof,  and  let  them  throw  their  veils 
over  their  bosoms  and  not  show  their  ornaments  unless  to 
their  husbands  or  their  fathers  or  their  husbands  fathers  or 
their  sons  or  their  husbands  sons  or  their  brothers  or  their 
brothers  sons  or  their  sisters  sons  or  their  women  or  the 
captives  which  their  right  hands  possess,  or  unto  such  men 
as  attend  them  and  have  no  need  of  women  or  unto  children 
who  distinguish  not  the  nakedness  of  women." 

"O  true  believers  enter  not  any  houses  besides  your  own 
houses  until  ye  have  asked  leave  and  have  saluted  the  family 
thereof  .  .  .  and  if  ye  find  no  person  in  the  houses,  yet  do 
not  enter  them  until  leave  be  granted  you,  and  if  it  be  said 
unto  you  return  back,  do  ye  return  back."^ 

The  criminal  code  is  not  voluminous.  The  Mosaic  lex 
talionis  is  repeated  with  leave  to  remit  on  payments  of  alms. 
"It  is  not  lawful  for  a  believer  to  kill  a  behever  unless  it  hap- 
pen by  mistake,  and  whoso  killeth  a  believer  by  mistake  the 
])enalty  shall  be  the  freeing  of  a  believer  from  slavery  and  a 
fine  to  be  paid  to  the  family  of  the  deceased  unless  they  remit 
it  as  alms;  and  if  the  slain  person  be  of  a  people  at  enmity 
with  you  and  be  a  true  believer,  the  penalty  shall  be  the  free- 
ing of  a  believer,  and  if  he  be  of  a  people  in  confederacy 
with  you,  a  fine  to  be  paid  to  his  family,  and  the  freeing  of  a 
believer,  and  he  who  findeth  not  wherewith  to  do  this  shall 
fast  two  months  consecutively,  as  a  penance  enjoined  from 
God.  .  .  .  But   whoso   killetli    a   believer   designedly   his   re- 

'  Id.  Ch.  4,  entitled  Women. 
*  Id.  Ch.  24.  p.  265. 


i64  EVOTXJTION  OF  GOVERNMENTS   AND  LAWS 

ward  shall  be  hell,  he  shall  remain  there  forever,"^  "If  a 
man  or  woman  steal  cut  off  his  hand." 

"The  whore  and  the  whoremonger  shall  ye  scourge  with 
an  hundred  stripes.  And  let  no  compassion  toward  them 
prevent  you  from  executing  the  judgment  of  God.  .  .  .  The 
whoremonger  shall  not  marry  any  other  than  a  harlot  or  an 
idolatress.  And  a  harlot  shall  no  man  take  in  marriage  ex- 
cept a  whoremonger  or  an  idolater;  and  this  kind  of  mar- 
riage is  forbidden  the  true  believers.  But  as  to  those  who 
accuse  women  of  reputation  of  whoredom  and  produce  not 
four  witnesses  of  the  fact,  scourge  them  with  fourscore 
stripes  and  receive  not  their  testimony  forever,  for  such  are 
infamous  prevaricators,  excepting  those  who  shall  afterwards 
repent  and  amend,  for  unto  such  will  God  be  gracious  and 
merciful.  They  who  shall  accuse  their  wives  of  adultery  and 
shall  have  no  witnesses  thereof  besides  themselves;  the  testi- 
mony which  shall  be  required  of  one  of  them  shall  be  that 
he  swear  four  times  by  God  that  he  speaketh  the  truth;  and 
the  fifth  time  that  he  imprecate  the  curse  of  God  on  him  if 
he  be  a  liar.  And  it  shall  avert  the  punishment  from  the 
wife,  if  she  swear  four  times  by  God  that  he  is  a  liar,  and  if 
the  fifth  time  she  imprecate  the  wrath  of  God  on  her  if  he 
speaketh  the  truth.  ^*^ 

"Kill  not  your  children  for  fear  of  being  brought  to  want, 
we  will  provide  for  them  and  for  you ;  verily  the  killing  them 
is  a  great  sin.  Draw  not  near  unto  fornication  for  it  is 
wickedness  and  an  evil  way.  Neither  slay  the  soul  which  God 
hath  forbidden  you  to  slay  unless  for  a  just  cause"  (apostasy, 
adultery  or  murder)  "and  whosoever  shall  be  slain  unjustly 
we  have  given  his  heir  power  to  demand  satisfaction,  but  let 
him  not  exceed  the  bounds  of  moderation  in  putting  to  death 
the  murderer  in  too  cruel  a  manner,  or  by  revenging  his 
friend's  blood  on  any  other  than  the  person  who  killed  him, 
since  he  is  assisted  by  this  law,  and  meddle  not  with  the  sub- 
stance of  the  orphan,  unless  it  be  to  improve  it  until  he 
attain  his  age  of  strength,  and  perform  your  covenant,   for 

» Id.  Ch.  5,  p.  78. 

"/rf.  Ch.  24,  entitled  Light. 


ARABIA  i6s 

the  performance  of  your  covenant  shall  he  inquired  into  here- 
after. And  give  full  measure  where  you  measure  aught,  and 
weigh  with  a  just  balance.  This  will  be  better  and  more 
easy  for  determining  every  man's  due.  .  .  .  Walk  not  proudly 
in  the  land  for  thou  canst  not  cleave  the  earth  neither  shalt 
thou  equal  the  mountains  in  stature.  All  this  is  evil  and 
abominable  in  the  sight  of  thy  Lord."^^ 

"O  true  believers  let  not  men  laugh  other  men  to  scorn  who 
peradventure  may  be  better  than  themselves;  neither  let  wo- 
men laugh  other  women  to  scorn  who  possibly  may  be  better 
than  themselves.  Neither  defame  one  another,  nor  call  one 
another  by  opprobrious  appellations.  An  ill  name  is  to  be 
charged  with  wickedness  after  having  embraced  the  faith,  and 
whoso  repenteth  not  they  will  be  the  unjust  doers.  O  true 
believers,  carefully  avoid  entertaining  a  suspicion  of  another, 
for  some  suspicions  are  a  crime.  Inquire  not  too  curiously 
i)ito  another  man's  failings,  neither  let  the  one  of  you  speak 
ill  of  another  in  his  absence."^^ 

"Whatever  things  are  given  you  they  are  the  provisions  of 
the  present  life;  but  the  reward  which  is  with  God  is  better 
and  more  durable,  for  those  who  believe  and  put  their  trust 
in  their  Lord  and  who  avoid  heinous  and  filthy  crimes  and 
when  they  are  angry  forgive,  and  who  hearken  unto  their 
Lord  and  are  constant  at  prayer,  and  whose  affairs  are  di- 
rected by  consultation  among  themselves,  and  who  give  alms 
out  of  what  we  have  bestowed  on  them,  and  who  when  an 
injury  is  done  them,  avenge  themselves  (and  the  retaliation 
of  evil  ought  to  be  an  evil  proportionate  thereto),  but  he  who 
forgiveth  and  is  reconciled  unto  his  enemy  shall  receive  his 
reward  from  God,  for  he  loveth  not  the  unjust  doers. "^^ 

"Thy  Lord  hath  commanded  that  ye  worship  none  besides 
him,  and  that  ye  show  kindness  unto  your  parents,  whether 
the  one  of  them  or  both  of  them  attain  to  old  age  with  thee. 
Wherefore  say  not  unto  them.  Fie  on  you ;  neither  reproach 
them,  but  speak  respectfully  unto  them,  and  submit  to  behave 

"  fd.  Ch.    ly,  entitled  The   Niglit  Journey. 
"Id.  Ch.  4Q,  entitled  The  Inner  Apartincnts. 
"Id.  Ch.  42,  entitled  Consultation. 


i66  EV0LUT10)N  OF  GOVERNMENTS  AND  LAWS 

humbly  towards  them  out  of  tender  affection  and  say  O 
Lord  have  mercy  on  them  both  as  they  nursed  me  when  I 
was  little.  .  .  .  And  give  unto  him  who  is  of  kin  to  you 
his  due  and  also  unto  the  poor  and  the  traveller,  and  waste 
not  your  substance  profusely  for  the  profuse  are  l)rcthrcn  of 
the  devils."i^ 

"God  will  not  punish  you  for  an  inconsiderate  word  in 
your  oaths,  but  he  will  punish  you  for  what  ye  solemnly 
swear  with  deliberation.  And  the  expiation  of  such  an  oath 
shall  be  the  feeding  of  ten  poor  men  with  such  moderate  food 
as  ye  feed  your  own  families  withal,  or  to  clothe  them,  or  to 
free  the  neck  of  a  true  believer  from  captivity,  but  he  who 
shall  not  find  wherewith  to  perform  one  of  these  three  things 
shall  fast  three  days.  This  is  the  expiation  of  your  oaths 
when  ye  swear  inadvertently.  Therefore  keep  your  oaths. 
Thus  God  declareth  unto  you  his  signs  that  ye  may  give 
thanks.  O  true  believers  surely  wine  and  lots  and  images 
and  divining  arrows  are  an  abomination  of  the  work  of 
Satan ;  therefore  avoid  them  that  ye  may  prosper,  Satan 
seeketh  to  sow  dissension  and  hatred  among  you  by  means 
of  wine  and  lots  and  to  divert  you  from  remembering  God 
and  prayer,  will  ye  not  therefore  abstain  from  them?"^^ 

"Say  I  find  not  in  that  which  hath  been  revealed  unto  me 
anything  forbidden  unto  the  eater  that  he  eat  it  not,  except 
it  be  that  which  dieth  of  itself  or  blood  poured  forth,  or 
swine  flesh  for  this  is  an  abomination,  or  that  which  is  pro- 
fane, having  been  slain  in  the  name  of  some  other  than  of 
God.  But  whoso  shall  be  compelled  by  necessity  to  eat  of 
these  things,  not  lusting  nor  wilfully  transgressing,  verily  the 
Lord  will  be  gracious  unto  him  and  merciful. "^"^ 

"They  who  devour  usury  shall  not  arise  from  the  dead  but 
as  he  ariseth  whom  Satan  hath  infected  by  a  touch,  this  shall 
happen  to  them  because  they  say,  Truly  selling  is  but  as  usury 
and  yet  God  hath  permitted  selling  and  forbidden  usury.  He 
therefore  who,  when  there  cometh  unto  him  an  admonition 
from  his  Lord,  abstaincth  from  usury  for  the  future,  shall 

''Id.  Ch.  17.  '"Id.  Ch.  s.  "Id.  Ch.  6. 


ARABIA  167 

have  what  is  past  forgiven  him,  and  his  affair  belongeth  unto 
God.  But  whoever  returneth  to  usury,  they  shall  be  the  com- 
panions of  hell  fire,  they  shall  continue  therein  forever."^'^ 

"O  true  believers,  when  you  bind  yourselves  one  to  the 
other  in  a  debt  for  a  certain  time,  write  it  down,  and  let  a 
writer  write  between  you  according  to  justice,  and  let  not 
the  writer  refuse  writing,  according  to  what  God  hath  taught 
him,  but  let  him  write  and  let  him  who  oweth  the  debt  dictate, 
and  let  him  fear  God  his  Lord  and  not  diminish  aught  thereof. 
But  if  he  who  oweth  the  debt  be  foolish  or  weak  or  be  not 
able  to  dictate  himself,  let  his  agent  dictate  according  to  equity 
and  call  to  witness  two  witnesses  of  your  neighboring  men; 
but  if  there  be  not  two  men,  let  there  be  a  man  and  two 
women  of  those  whom  ye  shall  choose  for  witnesses,  if  one 
of  these  women  should  mistake  the  other  will  cause  her  to 
recollect,  and  the  witnesses  shall  not  refuse  whensoever  they 
shall  be  called.  And  disdain  not  to  write  it  down,  be  it  a 
large  debt  or  be  it  a  small  one,  until  its  time  of  payment ; 
tliis  will  be  more  just  in  the  sight  of  God,  and  more  right  for 
bearing  witness  and  more  easy  that  ye  may  not  doubt.  But 
if  it  be  a  present  bargain  which  ye  transact  between  your- 
selves, it  shall  be  in  you  if  ye  write  it  not  down.  And  take 
witnesses  when  ye  sell  one  to  the  other,  and  let  no  harm 
be  done  to  the  writer  nor  to  the  witnesses. "^'^ 

The  true  believers  were  commanded  to  wash  before  prayers 
and  if  where  no  water  could  be  had,  to  rub  faces  and  hands 
with  fine  clean  sand. 

"O  true  believers  observe  justice  when  ye  bear  witness  be- 
fore God,  although  it  be  against  yourselves  or  your  parents  or 
relations,  whether  the  party  be  rich  or  whether  he  be  poor, 
for  God  is  more  worthy  than  them  both ;  therefore  follow  not 
your  own  lust  in  bearing  testimony  so  that  ye  swerve  from 
justice.  And  whether  ye  wrest  your  evidence  or  decline  giv- 
ing it  God  is  well  acquainted  with  that  which  ye  do."^'^ 

"God  hath  a|)pointed  the  Caaba  the  holv  house  an  establish- 
ment for  mankind;  and  hath  ordained  the  sacred  month  and 

"  Id.  Ch.  2.  "  Id.  Ch.  2.  >•  Id.  Ch.  4. 


»68  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  offering  and  the  ornaments  hung-  thereon."^"  "But  they 
wlio  shall  disbelieve  and  obstruct  the  way  of  God  and  hinder 
men  from  visiting  the  holy  tcmi)le  of  Mecca  which  we  have 
appointed  for  a  place  of  worship  unto  all  men;  the  inhabi- 
tant thereof  and  the  stranger  have  an  equal  right  to  visit  it; 
and  whosoever  shall  seek  impiously  to  profane  it  we  will 
cause  him  to  taste  a  grievous  torment.  Call  to  mind  when 
we  gave  the  site  of  the  Caaba  for  an  abode  unto  Abraham, 
saying,  Do  not  associate  anything  with  me  and  cleanse  my 
house  from  those  who  compass  it  and  who  stand  up  and  who 
bow  down  to  worship.  And  proclaim  unto  the  people  a 
solemn  pilgrimage,  let  them  come  unto  thee  on  foot  and  on 
every  lean  camel  arriving  from  every  distant  road,  that  they 
may  be  witnesses  of  the  advantages  that  accrue  to  them  from 
visiting  the  holy  place,  and  may  commemorate  the  name  of 
God  on  the  appointed  days  in  gratitude  for  the  brute  cattle 
he  hath  bestowed  on  them."-^ 

The  foregoing  passages  cover  substantially  all  of  Moham- 
med's law-giving.  The  substance  of  some  of  these  commands 
is  repeated  in  other  places,  but  the  balance  of  the  Koran  is 
fdled  with  sermons  and  narratives  taken  from  the  Bible,  and 
frequent  and  oft  repeated  denunciations  of  the  infidels.  This 
meager  code  did  not  suffice  for  the  vast  empire  built  up  I\v  his 
successors.  To  supplement  it  recourse  was  had  to  decisions 
made  by  Mohammed,  to  analogies,  traditions  and  customs 
constituting  the  Sunna.  Numberless  commentators  elucidated 
the  text  of  the  Koran,  and  the  decisions  of  Mohammed  were 
collected  and  published.  Where  all  these  failed  to  furnish  a 
rule  the  early  Caliphs  exercised  their  own  judgment,  and,  as 
must  always  happen  everywhere  in  the  absence  of  an  estab- 
lished rule  or  precedent,  the  opinion  of  the  judge  in  the 
particular  case  necessarily  stands  for  law.  Throughout  all 
Mohammedan  countries,  however,  the  Koran  was  ever  looked 
to  for  the  spirit  of  the  whole  law,  and  its  commands  admitted 
of  no  change  or  modification  by  any  authority  whatever.  A 
lengthy  treatise  on  Mohammedan  jurisprudence,  that  of  Tbn 

"/rf.  Ch.  5- 

"  Id.  Ch.  23,  entitled  The  True  Believer. 


ARABIA  169 

Hanbal,  has  the  following  principal  heads.  Of  Purification 
(ablution,  purification  of  women,  circumcision,  etc.).  Of 
Prayer,  of  Funerals,  of  Tithe  and  Almsgiving,  of  the  legal 
Fasts,  of  the  Pilgrimage  to  Mecca,  of  Commercial  and  other 
transactions,  of  Inheritance,  of  marriage  and  divorce,  of  the 
Faith,  of  Crimes  and  Misdemeanors,  of  Justice,  of  the  Ima- 
mate  or  spiritual  power,  and  of  the  Caliphate  or  temporal 
power. 

An  American  lawyer  would  be  more  likely  to  think  he  had 
found  a  religious  commentary  than  a  law  book,  but  with 
Mohammedans,  law  and  gospel  were  one. 

Mohammed's  power  was  derived  from  the  loelief  in  his 
divine  commission.  The  scope  and  limitations  of  his  authority 
were  fixed  by  revelations  of  the  Koran,  from  time  to  time, 
as  the  exigencies  of  state  required.  In  his  life  he  extended 
his  power  over  Arabia  and  sought  submission  from  neighbor- 
ing people,  but  died  when  preparing  to  invade  Syria.  His 
successors  rapidly  extended  their  power  over  Egypt,  Syria 
and  thence  over  the  north  of  Africa  and  all  Asia  Minor.  The 
first  four  Caliphs  were  chosen  by  the  community  at  Medina. 
The  revenues  of  the  state  consisted  of  the  tithe  for  the  poor, 
which  every  Moslem  was  required  to  pay,  a  fifth  of  the  spoils 
of  war,— the  rest  going  to  the  warriors, — the  poll  tax  and 
land  tax  on  infidels.  The  Caliph  administered  the  revenues 
according  to  his  pleasure.  The  poll  tax  ranged  from  about 
two  dollars  on  the  poor  to  about  eight  dollars  on  the  rich.  The 
land  tax  was  in  the  nature  of  a  rent  according  to  the  character 
of  the  holding.  In  the  early  days  pensions  were  paid  to  the 
faithful  out  of  the  public  revenues.  With  the  growth  of  the 
empire  the  necessities  of  administration  caused  its  division  in- 
to provinces,  first  ten,  and  on  the  removal  of  the  capital  from 
Damascus  to  Bagdad,  twelve.  Each  province  was  governed  by 
a  prefect,  who  stood  in  the  place  of  the  Caliph.  The  central 
administration  developed  into  various  departments,  each  un- 
der the  supervisif)n  of  a  chief.  There  was  a  ministry  of 
hinance.  Bureau  of  State  property,  Exchequer  Office,  Min- 
istry of  War,  Court  of  Appeal,  Iiureau  of  freedmen  and 
slaves  of  tlic  { 'aliplis,  OHIcc  of  cxiicndiliirc,  ( )r("ic('  of   I'osts, 


I70  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Office  of  Correspondence,  Office  of  the  Imperial  Seal  and 
registration.  All  ix)wer  was  centered  in  the  Caliph,  who  was 
the  spiritual  as  well  as  the  temporal  head.  The  ministers  of 
the  various  departments  were  responsible  to  him.  So  were 
the  prefects  who  stood  as  his  representatives  in  the  provinces. 

Justice  was  administered  by  Cadis  appointed  by  the  Caliph, 
his  Vizier  or  the  prefect.  To  be  eligible  to  this  appointment 
one  must  be  a  free  male  Moslem,  of  suitable  age,  sound  mind, 
good  morals  and  learned  in  the  law.  The  Cadis  had  general 
civil  and  criminal  jurisdiction  and  of  guardianships  and  es- 
tates, and  over  mosques,  schools  and  public  buildings.  To  as- 
sist him  the  Cadi  had  Notaries,  Secretaries  and  Deputies. 
From  the  decision  of  the  Cadi  an  appeal  might  be  taken  to 
the  Court  of  Appeal,  which  was  presided  over  by  the  Caliph  in 
person  till  the  time  of  Mohtadi,  after  which  a  special  judge 
appointed  for  that  purpose  presided.  In  the  provinces  there 
were  Marshals  who  kept  records  of  the  birth  and  death  of 
descendants  of  the  family  of  the  Prophet.  The  Imams  of- 
ficiated at  the  Mosques, 

The  practical  application  of  the  Koran  in  the  decision  of 
causes  by  the  Cadis  and  the  religious  sentiment  of  the  be- 
lievers combined  in  calling  out  innumerable  commentaries, 
seeking  to  elucidate  and  make  plain  whatever  was  obscure. 
Judges  with  a  fixed  guide  for  their  decisions  were  a  marked 
improvement  over  despotism,  notwithstanding  the  meager 
rules  afforded  by  the  Koran.  Under  the  Caliphs  a  new  and 
better  civilization  than  any  which  had  preceded  it  developed, 
and  the  seats  of  learning  and  progress  in  literature,  art  and 
science  were  within  the  Moslem  world.  As  the  lights  grew 
dim  in  the  crumbling  empire  of  Rome  and  Constantinople 
they  burned  more  brightly  at  Damascus  and  Bagdad,  illumi- 
nating the  followers  of  Islam  from  India  to  Andalusia. 
Though  the  teachings  of  Mohammed  were  not  so  pure  and 
exalted  as  those  of  Christ,  they  were  coupled  with  more  prac- 
tical means  for  their  observance,  and  on  Asiatic  and  African 
soil  they  manifested  superior  adaptation.  In  Europe  they 
never  took  firm  root,  save  among  the  Moors  in  Spain  and  the 
Turks  in  the  east. 


ARABIA  171 

Though  at  this  day  it  is  estimated  that  near  175,000,000 
people  are  Mohammedans,  the  empire  of  the  Cahphs  is  in 
scattered  fragments.  The  Koran  sanctions  slavery  and  poly- 
gamy, and,  while  it  forbids  wine  and  gaming  in  this  world,  it 
promises  a  sensual  idlers'  heaven.  Its  ideals  are  neither  pure 
nor  exalted,  and  its  standard  of  justice  is  partial  and  deficient. 
While  apparently  of  great  use  in  its  time,  like  all  other  rigid 
systems  enforced  by  a  religious  sanction,  it  perpetuates  its 
errors  and  vices,  and  in  the  lapse  of  centuries  these  seem  to 
overshadow  the  good  and  render  the  whole  an  obstacle  to  be 
removed  to  make  way  for  something  better.  But  so  well  is 
the  faith  with  its  rewards  and  punishment  adapted  to  certain 
types  of  men,  that  neither  Christianity  nor  Buddhism  has  suc- 
ceeded in  transplanting  it. 


CHAPTER  IX 


India 


Within  the  geographical  Hmits  of  what  we  call  India  there 
are,  and  in  the  earliest  times  of  which  we  have  any  accounts 
were,  so  many  people,  differing  in  race,  language  and  social 
condition  from  each  other,  that  generalizations  become  ex- 
ceedingly difficult  and  a  connected  historical  statement  of  the 
development  of  their  civilization  quite  impossible.  No  single 
race  has  at  any  known  date  occupied  the  whole  territory.  No 
one  language  has  been  spoken  by  all  the  people.  At  this  day 
the  ethnologist  finds  there  an  ample  field  for  the  study  of  the 
diverse  types  of  men.  Connected  histories  by  native  writers 
are  almost  wholly  wanting.  The  material  from  which  the 
student  must  proceed  to  construct  an  account  of  the  past  is 
fragmentary.  The  earliest  accounts  come  through  the  sacred 
writings  of  the  Aryan  invaders,  who  entered  the  country 
from  the  northwest.  The  date  of  their  advent  into  the  Pun- 
jab is  variously  estimated  by  scholars  on  data  which  leave  a 
very  wide  margin  for  difference  of  inference,  with  no  means 
of  definitely  settling  the  point.  It  seems  safe  to  say  that  it 
was  more  than  looo  B.C.  and  may  have  been  thousands  of 
years  earlier.  These  invaders  found  the  country  already 
peopled  by  numerous  tribes,  some  of  whom  used  iron  imple- 
ments and  were  considerably  advanced  above  the  savage  state. 
Of  the  people  occupying  those  parts  of  the  country  remote 
from  the  invaders  we  have  no  accounts  reaching  back  to  so 
early  a  time. 

From  the  Vedic  hymns  are  gathered  the  leading  facts  re- 
lating to  the  movement  of  the  Indian  branch  of  the  great 
Aryan  family  from  the  common  home  in  the  mountain  region 
from  which  the  Oxus  and  Jaxartes  flowed.  What  causes  have 
produced  the  Brahmin  type  in  India  and  the  Persian,  Median 
and  European  in  the  west  it  is  not  our  purpose  to  inquire,  but 


INDIA  173 

it  may  be  noticed  that  the  race  is  generally  the  dominant  one 
wherever  found.  The  earliest  songs  disclose  the  clans  in 
Cabiil  north  of  Khyber  Pass,  the  later  ones  show  tlieni  to  have 
reached  the  Ganges.  They  were  a  very  religious  people  and 
placed  great  reliance  on  the  aid  of  their  gods.  The  Rich- 
Veda  shows  the  Aryans  dwelling  along  the  banks  of  the 
Indus,  divided  into  tribes,  sometimes  warring  with  each  other, 
sometimes  united  against  the  dark  skinned  aborigines.  Each 
father  of  a  family  was  also  its  priest.  The  chief  acted  as 
priest  of  the  tribe,  but  at  the  great  festivals  chose  some  one 
specially  learned  in  the  rites  to  conduct  the  sacrifices.  Chiefs 
were  elected.  Husband  and  wife  together  were  rulers  of  the 
house,  and  the  marriage  relation  was  held  sacred.  Caste  and 
the  burning  of  widows  were  unknown.  Before  entering  India 
through  the  Khyber  Pass  and  while  still  in  the  mountainous 
region  near  Cabul,  the  Aryans  had  already  discovered  or 
learned  many  of  the  arts  of  civilization.  They  had  black- 
smiths, coppersmiths ,  goldsmiths,  carpenters  and  barbers. 
They  fought  in  chariots  and  with  horses,  they  reared  cattle, 
tilled  the  soil,  spun  and  wove.  When  and  where  the  art  of 
writing  was  learned  by  them  is  a  point  on  which  scholars  differ 
widely.  While  it  is  agreed  on  all  hands  that  the  hymns  of 
the  Rig  Veda  are  of  very  ancient  composition,  definite  dates 
have  not  been  fixed,  and  it  is  claimed  that  they  were  not  re- 
duced to  writing  for  many  centuries  after  their  original  com- 
position. 

This  strong,  vigorous  and  highly  religious  race  of  people 
descended  into  the  valley  of  the  Indus,  which  they  found  al- 
ready occupied  by  inferior  people.  Most  of  the  aboriginal 
tribes  found  by  the  Aryans  were  of  a  negroid  or  mongolian 
type,  not  more  advanced  in  culture  than  the  American  In- 
dians at  the  time  of  the  discovery  of  the  western  continent. 
There  were  others  mentioned  in  Sanskrit  literature  as  wealthy 
and  possessed  of  castles  and  forts.  They  adorned  their  dead 
with  raiment  and  ornaments  of  bronze,  copper  and  gold. 
There  are  ample  evidences  of  the  existence  in  early  times  of 
rude  tribes,  who  used  stone  implements,  but  just  at  what  stage 
of  development  all  the  native  people  had  .irrived  at   the  time 


174  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  the  advent  of  the  Aryans,  it  is  impossible  to  state.  That 
the  invaders  were  superior  as  warriors,  as  well  as  in  culture, 
is  evident  from  the  extension  of  their  possessions,  which 
spread  from  the  valley  of  the  Indus  to  that  of  the  Ganges  and 
ultimately  extended  over  most  of  the  peninsula.  The  con- 
quests of  the  Aryans  however,  were  not  merely  the  extension 
of  military  power  and  governmental  control  over  the  native 
population,  but  the  encroachments  of  a  superior  race,  which 
either  drove  out  or  subjugated  the  inferior.  Race  and  re- 
ligious superiority  were  asserted  rather  than  mere  sovereignty, 
and  the  invaders  came  to  make  the  conquered  country  their 
liome. 

The  non-Aryan  races  are  said  to  belong  to  three  principal 
stocks,  the  Tibeto-Burman,  the  Kolarian  and  Dravidian.  The 
language  of  the  Tibeto-Burman  indicates  Mongolian  and 
Chinese  origin,  and  it  is  inferred  that  they  crossed  into  the 
country  they  now  inhabit  along  the  skirts  of  the  Himalayas 
from  Central  Asia.  The  Kolarians  are  also  supposed  to  have 
entered  India  from  the  north  and  are  now  found  mainly  in 
the  north  and  along  the  northern  edge  of  the  southern  table- 
land. At  the  present  time  they  appear  as  scattered  tribes, 
whose  common  origin  is  proved  by  similarity  of  language 
and  appearance  rather  than  any  social  connection  or  tradition 
of  common  origin.  The  Dravidians  form  a  compact  mass 
in  southern  India,  and  the  dialects  classed  as  Dravidian  are 
spoken  by  nearly  50,000,000  people.  Aside  from  these  prin- 
cipal stocks,  the  presence  of  Africans  and  Arabs  in  India  in 
very  early  times  is  well  established,  and  their  blood  has  been 
preserved  and  mixed  with  the  other  stocks  to  a  considerable 
degree.  At  all  periods  in  its  history  India  seems  to  have  at- 
tracted to  it  people  from  the  north  and  west,  not  only  for 
trade,  but  also  for  permanent  settlement  and  conquest. 

Chaldeans,  Assyrians  and  Egyptians  as  well  as  Chinese 
have  known  of  and  traded  with  the  people  of  India  from  very 
early  times,  yet  very  little  can  be  learned  of  the  early  condi- 
tions of  the  people  from  accounts  derived  through  these 
sources.  It  is  impossible  to  trace  the  governmental  and 
social  state  of  India  through  the  historical  period  and  ignore 


INDIA  175 

the  rise  and  fall  of  religion.  Nowhere  else  has  the  effect 
of  religious  teaching  on  social  life  been  greater  or  more 
enduring'. 

The  proud  Aryan  invaders,  whose  deeds  are  related  in  the 
Vedic  verses,  asserted  and  maintained,  not  only  their  own  race 
superiority  over  the  people  they  subdued,  but  also  the  superi- 
ority of  their  gods  over  the  weaker  ones  of  the  aborigines. 
In  the  early  period  of  the  Aryan  invasion,  when  the  art  of 
writing  was  unknown,  the  battle  hymns  and  sacrificial  cere- 
monials were  passed  down  by  oral  instruction  from  father  to 
son.  This  led  to  the  growth  of  a  priestly  order,  specially 
versed  in  all  that  pertained  to  the  sacred  rituals.  Great  faith 
was  put  in  the  efficiency  of  battle  hymns  that  had  been  chanted 
and  prayers  that  had  been  offered  before  successful  battles. 
By  degrees  the  number  of  prayers  and  hymns  increased  and 
the  priestly  order  multiplied,  till  the  great  ceremonies  re- 
quired superior  priests  to  direct  and,  under  them,  those  who 
prepared  the  sacrificial  ground,  dressed  the  altars,  slew  the 
victims  and  poured  the  libations,  those  who  chanted  the  Vedic 
hymns  and  those  who  recited  other  parts  of  the  service.  In 
the  course  of  time  a  priestly  order  was  thus  developed.  As 
the  conquests  of  the  invaders  were  extended  by  continual 
wars  against  the  primitive  people,  the  leaders  of  the  army, 
who  were  rewarded  with  such  possessions  as  enabled  them  to 
devote  all  their  time  to  the  service  of  the  king,  became  the 
military  class.  The  common  people  who  settled  down  and 
tilled  the  soil  became  the  Vaisyas,  and  beneath  them  were  the 
conquered  people  who  were  forced  to  serve  the  invaders.  In 
this  manner  the  four  fundamental  castes,  which,  with  their 
numerous  divisions,  subdivisions  and  new  classifications,  haxe 
given  to  Indian  society  its  peculiar  structure,  were  founded. 
The  Brahmans  have  always  asserted  their  superiority  over  all, 
but  this  has  not  always  been  conceded  by  the  military  caste, 
and  the  relative  power  and  influence  of  these  leading  castes 
have  fluctuated  with  the  varying  conditions  due  to  the  rise 
and  fall  of  dynasties  and  the  strength  or  weakness  of  j)rinces 
and  (Hher  causes. 

The  Vaisyas  were  (he  lowest  caste  of  the  Aryan  stock,  yet 


176  EVOLUTION  OF  GOVE,RNM:ENTS  AND  LAWS 

were  ranked  as  belonging  to  the  "twice  burn"  and  were  all 
allowed  to  be  present  at  the  great  national  sacrifices.  The 
lowest  were  the  once  born  Siidras,  the  Dasas  of  the  Veda, 
whose  lives  were  spared  by  the  conqnerors  in  order  that  they 
might  live  as  a  servile  class.  These  were  not  allowed  to  at- 
tend the  great  sacrifices  and  feasts.  It  was  their  lot  to  per- 
form the  hardest  and  meanest  labor,  and  from  their  low 
estate  they  could  never  rise.  The  system  of  castes  did  not 
fully  develop  until  after  the  Aryans  were  well  settled  along 
the  Ganges.  It  did  not  obtain  in  the  early  settlements  west 
of  the  Indus.  In  the  Middle  Land,  from  Delhi  to  Benares, 
the  Brahmans  became  a  compact  body  which  assumed  to  dic- 
tate to  all  classes  in  all  matters  relating  to  religion,  philosophy 
and  law.  They  denounced  all  Aryans  who  did  not  submit 
to  their  pretensions  as  lapsed  and  outcast  tribes.  The  re- 
ligious thought  of  the  people  found  its  expression  in  the 
Vedas,  which  were  ultimately  compiled  and  reduced  to  writ- 
ing. The  Brahmans  however  were  not  content  with  the  en- 
forcement of  religious  rites  and  the  preservation  of  the 
ancient  faith.  They  sought  to  secure  their  own  position  and 
the  social  system  which  had  been  developed  by  codes  of  laws. 
The  earliest  of  these  are  the  Dharma  Sastras,  which  exhibit 
the  state  of  the  Hindu  law  at  an  early  date,  not  fixed  with 
any  degree  of  certainty.  They  do  not  purport  to  be  new 
enactments,  but  simply  compilations  of  existing  law.  They 
recognize  and  enforce  the  division  into  castes  in  the  order 
stated.  Later  than  this  came  the  great  code  of  Manu  which 
the  Brahmans  ascribe  to  the  first  Aryan  man  thirty  millions 
of  years  ago.  This  was  a  compilation  of  the  laws  which  had 
been  established  in  that  portion  of  India  where  the  Brahman- 
ical  order  exercised  the  greatest  influence.  This  so-called  code 
has  wielded  a  more  powerful  influence  and  over  a  far  wider 
field  than  any  native  dynasty  ever  established  in  India.  So 
strong  a  hold  did  the  system  which  it  expressed  gain  on  the 
people  of  India  that  its  leading  tenets  have  maintained  their 
authority  through  all  the  mutations  of  race  and  empire,  even 
to  the  present  day.  Later  than  this  came  a  second  great  code 
that  of  V'ajnavalka,  compiled  after  the  establishment  of  Bud- 


INDIA  177 

dhism.  It  is  a  reiteration  of  the  laws  of  Manu  with  some 
additions  relating  to  legal  forms  and  other  matters. 

These  codes  found  their  sanction  in  the  Vedas,  which  had 
attained  the  authority  of  inspired  writings,  and  the  rules  de- 
clared for  the  government  of  all  classes  of  people  were  mainly 
extracted  from  the  Vedic  Sanhitas.  While  the  purpose  to 
exalt  the  Brahman  caste  is  evident,  it  was  not  the  gross  super- 
iority which  comes  merely  with  the  possession  of  wealth  and 
political  power,  but  a  far  better  and  more  enduring  superiority 
was  sought  and  in  fact  attained.  The  Brahmans  were  made 
the  custodians  not  merely  of  the  religious  ceremonials  but  of 
learning  as  well.  Purity  of  morals  and  of  blood  were  en- 
joined, and  the  leading  idea  at  all  times  seems  to  have  been 
to  maintain  a  genuine  intellectual  and  physical  superiority  over 
the  native  races  and  also  over  the  inferior  Aryan  castes.  The 
three  original  Aryan  castes  Brahmans,  Cshattriyas  and  Vaisyas 
all  observed  the  same  domestic  rites  at  birth,  first  feeding  of 
rice,  investure  with  the  sacred  thread,  marriage,  funerals,  etc. 
The  most  important  of  these  observances  was  the  upanayana 
or  conducting  the  boy  to  his  teacher.  Connected  with  this 
was  the  ceremony  of  investing  with  the  sacred  cord,  which 
was  worn  over  the  left  shoulder  and  under  the  right  arm, 
varying  in  material  according  to  the  class  of  the  wearer. 
This  was  the  preliminary  to  his  initiation  into  the  study  of 
the  Veda,  the  management  of  the  sacred  fire,  the  knowledge 
of  the  rites  of  purification,  and  the  invocation  to  the  sun, 
which  he  must  repeat  morning  and  evening. 

The  steps  by  which  the  principles  of  Brahmanical  law  were 
extended  and  enforced,  throughout  not  only  Hindostan  but 
farther  India  as  well,  cannot  be  traced  historically,  but  certain 
it  is  that  the  code  of  Manu,  modified  by  and  adapted  to  local 
conditions  and  customs,  forms  the  basis  of  the  social  or- 
ganization of  the  many  races  of  India.  While  the  system  of 
castes  is  often  spoken  of  as  the  most  rigid  and  inflexible  in- 
stitution ever  established,  it  seems  to  have  been  so  moulded  as 
to  adapt  itself  to  all  the  varying  conditions  of  that  most 
varied  aggregation  of  people,  and  in  matters  of  belief  the 
Indian  pantheon  appears  at  one  time  or  another  to  have  had 


178  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

a  place  for  every  god  and  religious  ceremonial,  a  form  suited 
to  the  prejudice  of  every  clan. 

The  Brahmanical  codes  were  never  dei)endent  for  their 
enforcement  on  any  particular  ruler  or  ordinary  governmental 
agency.  Their  principles  were  inculcated  into  all  classes  by 
the  teachers,  who  acted  also  as  judges  in  controversies  aris- 
ing among  the  people. 

The  first  powerful  attack  on  the  influence  of  the  Brahmans 
resulted  from  the  teachings  of  Gautama  in  the  sixth  century 
B.C.  He  was  the  son  of  the  chief  of  the  Sakyas,  an  Aryan 
clan  dwelling  about  one  hundred  miles  north  from  Benares, 
and  was  himself  of  the  Cshatriya  caste.  Having  abandoned 
all  the  privileges  of  his  station  and  formulated  his  system  of 
religion,  he  proceeded  to  teach  it  as  a  mendicant,  begging 
his  subsistence  wherever  he  went.  He  sought  to  establish  no 
new  government  or  organization  of  society,  but  to  teach  men 
the  way  to  permanent  peace  and  happiness,  to  rest  in  Nirvana. 
He  taught  the  Brahman  doctrine  of  the  transmigration  of 
the  soul,  and  that  existence  must  be  endured  till  the  soul  be- 
came pure  and  free  from  all  evil  passions  and  desires.  The 
purity  and  loftiness  of  his  doctrines  are  fairly  expressed  in 
the  following  extract  from  the  Buddhist  Scriptures.  Answer- 
ing the  question  as  to  what  he  considered  the  greatest  blessing 
he  said,  "i.  To  serve  wise  men  and  not  fools,  to  give  honor 
to  whom  honor  is  due,  this  is  the  greatest  blessing.  2.  To 
dwell  in  a  pleasant  land,  to  have  done  good  deeds  in  a  former 
birth,  to  have  right  desires  for  one's  self,  this  is  the  greatest 
blessing.  3.  Much  insight  and  much  education,  a  complete 
training  and  pleasant  speech,  this  is  the  greatest  blessing. 
4.  To  succor  father  and  mother,  to  cherish  wife  and  child,  to 
follow  a  peaceful  calling,  this  is  the  greatest  blessing".  5.  To 
give  alms  and  live  righteously,  to  help  one's  relatives  and  do 
blameless  deeds,  this  is  the  greatest  blessing.  6.  To  cease 
and  abstain  from  sin,  to  eschew  strong  drink,  not  to  be 
weary  in  well  doing,  this  is  the  greatest  blessing.  7.  Rever- 
ence and  lowliness,  contentment  and  gratitude,  the  regular 
hearing  of  the  law,  this  is  the  greatest  blessing.  8.  To  be 
long  suffering  and  meek,  to  associate  with  members  of  the 


INDIA  1/9 

Sangha,  religions  talk  at  due  seasons,  this  is  the  greatest 
blessing.  9.  Temperance  and  chastity,  a  conviction  of  the 
four  great  truths,  the  hope  of  Nirvana,  this  is  the  greatest 
blessing.  10.  A  mind  unshaken  by  the  things  of  the  world, 
without  anguish  or  passion  and  secure,  this  is  the  greatest 
blessing.  11.  They  that  act  like  this  are  invincible  on  every 
side,  on  every  side  they  walk  in  safety  and  theirs  is  the  great- 
est blessing." 

The  teachings  of  Gautama,  though  not  directly  attacking 
the  institution  of  caste,  left  no  place  for  it.  Nirvana  was 
open  to  the  Sudra  as  well  as  the  Brahmen.  The  same  course 
of  conduct  was  enjoined  on  all  and  the  vanity  of  all  earthly 
possessions  and  power  was  a  leading  theme  in  his  teachings. 
He  organized  a  society  called  the  Sangha,  whose  members 
forsook  worldly  callings  and  taught  his  doctrines.  The 
Buddhist  monasteries,  afterward  so  numerous  wherever  his 
religion  became  established,  are  the  successors  of  this  society, 
though  the  practices  and  doctrines  of  the  early  time  have 
been  much  corrupted.  The  new  religion  was  spreading  among 
the  tribes  of  Northern  India  at  the  time  of  Alexander's  in- 
vasion 327  B.C.  but  had  not  become  general. 

From  the  Greek  historians  we  gain  the  first  historical  ac- 
counts of  India  as  seen  through  the  eyes  of  Europeans.  The 
impression  was  of  a  country  of  vast  wealth  and  numerous 
people.  The  most  potent  monarch  Alexander  encountered 
was  Porus,  whose  dominions  appear  to  have  been  in  the 
Eastern  part  of  the  Punjab.  His  force  is  stated  at  30,000 
infantry,  4,000  cavalry,  200  elephants  and  300  war  chariots, 
though  the  combined  forces  of  the  Oxydracae  and  Malli  which 
Alexander  afterward  encountered  are  said  to  have  amounted 
to  90,000.  Alexander's  conquests  extended  only  into  the 
Punjab  and  did  not  prove  permanent.  Following  the  Greek 
invasion  Chandra  Gupta  founded  his  empire  in  what  is  now 
the  province  of  Behar  with  his  capital  at  Patna.  Seleucus, 
who  succeeded  on  the  death  of  Alexandria  323  B.C.  to  the 
lunpire  of  the  l^ast,  was  unable  to  maintain  his  authority  in 
India  anrl  finally  concluded  an  alliance  with  Chandra  Gupta, 
giving  him  his  daughter  in  marriage  and  sending  Alegasthencs 


i8o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

as  an  ambassador  to  reside  at  his  court.  Me^^asthcncs  wrote 
a  full  account  of  the  condition  of  society  in  India  at  that  time, 
and  his  account  of  the  system  of  castes  corresponds  in  the 
main  with  that  obtained  later  through  Indian  sources.  He 
divides  the  people  into  seven  classes,  viz.  philosophers,  hus- 
bandmen, shepherds,  artisans,  soldiers,  inspectors  and  coun- 
sellors of  the  king. 

He  commented  favorably  on  the  absence  of  slavery,  the 
chastity  of  the  women  and  the  courage  of  the  men.  Each 
village  was  a  little  republic,  owning  the  land  by  a  common 
title,  though  tilling  in  separate  tracts.  The  people  were  truth- 
ful, sober  and  industrious,  living  peaceably  in  their  com- 
munities. India  he  says  was  then  divided  into  ii8  kingdoms. 
General  descriptions  of  a  country  so  vast  as  India  must  then 
have  been  very  imperfect.  Though  the  disposition  of  the 
people  was  peaceable,  wars  between  the  petty  kingdoms  oc- 
curred, resulting  in  the  rise  and  fall  of  rulers  and  the  ag- 
grandizement of  one  at  the  expense  of  another. 

The  kingdom  founded  by  Chandra  Gupta  was  extended 
under  his  grandson  Asoka  over  the  whole  of  Northern  India. 
After  a  bloody  early  career,  in  which  among  the  deeds 
charged  to  him  is  that  of  ordering  the  slaughter  of  all  his 
brothers  but  one.  in  the  year  257  B.C.  he  became  converted 
to  the  Buddhist  faith.  He  was  as  vigorous  in  inculcating  the 
new  religion  as  he  had  been  in  war,  and  Buddhist  monasteries 
multiplied  all  over  his  dominions.  He  sent  ambassadors  to 
Egypt,  Cyrene,  Syria  and  Macedonia.  At  his  death,  after  a 
long  and  prosperous  reign,  his  empire  fell  to  pieces.  One 
of  the  prominent  features  of  Asoka's  reign  was  the  great 
council  of  Buddhists,  held  at  his  call  244  B.C.,  at  which  the 
canons  of  the  faith  were  discussed  and  promulgated  in  what 
is  termed  by  northern  Buddhists  the  Lesser  Vehicle,  in  con- 
tradistinction to  the  Greater  Vehicle,  a  more  voluminous  com- 
pilation, engrafting  many  new  practices  and  articles  of  faith, 
which  was  settled  by  the  fourth  and  last  great  council  held 
in  the  reign  of  Kanishka,  who  ruled  northwestern  India,  as 
well  as  a  considerable  district  lying  to  the  north  and  west  of 
it.  The  Greater  Vehicle  became  the  law  for  the  Thibetan  and 
Chinese  followers  of  Buddha. 


INDIA  i8i 

About  126  B.C.  the  Tartars  are  said  to  have  driven  the 
Greeks  from  Bactria  and  their  settlements  from  the  Punjab. 
The  empire  of  Kanishka  is  styled  Scythic,  and  there  seems 
to  have  been  at  that  period  an  extensive  movement  of  Scyth- 
ians into  India.  They  did  not  meet  with  a  peaceful  reception, 
and  the  princes  and  warriors  who  successfully  resisted  their 
encroachments  are  celebrated  by  Hindu  writers.  They  ap- 
pear however  to  have  maintained  a  part  of  their  conquests 
and  the  modern  Jats  and  some  tribes  of  Rajputs  are  said  to 
be  of  Scythic  stock. 

Later  came  invasions  of  Huns.  To  trace  the  varying  for- 
tunes of  the  natives  and  their  invading  enemies  is  a  great 
and  exceedingly  difficult  task,  not  contemplated  in  this  work. 
Recurring  periods  of  bloodshed  and  the  desolations  of  war 
interrupted  the  calm  devotions  of  the  faithful  followers  of 
the  teacher  of  peace  and  good  works.  Notwithstanding  the 
inculcation  of  the  injunction  not  to  kill,  the  people  of  India 
stood  their  ground  and  on  the  whole  seem  to  have  had  rather 
the  better  of  the  struggle  with  the  ruder  people  from  the 
northwest.  Aryan  and  non- Aryan  people  alike  were  engaged 
in  opposing  the  invaders,  as  well  as  in  warring  with  each 
other  from  time  to  time.  In  about  630  a  Chinese  pilgrim 
found  both  the  northern  and  southern  sects  of  Buddhists  in 
India  and  listened  to  their  debates  at  various  places. 

Brahmanism  continued  in  spite  of  the  growth  of  the  new 
religion.  It  was  doubtless  materially  aided  by  the  frequently 
recurring  wars,  when  fierce  war  gods,  who  were  given  places 
in  the  pantheon,  were  deemed  more  serviceable  than  the  pas- 
sive virtues  of  Buddha.  About  the  seventh  and  eighth  cen- 
turies there  seems  to  have  been  a  revival  of  Brahmanism,  and, 
at  the  time  of  the  Mohammedan  invasion.  Buddhism  had 
nearly  disappeared  from  India. 

The  first  Mohammedan  invasion  was  in  664,  only  thirty- 
two  years  after  the  death  of  the  Prophet,  but  it  was  without 
permanent  results.  In  711  Sind  was  invaded  and  subjected  to 
the  rule  of  Waldi  I,  Caliph  of  Damascus.  In  750  the  Moham- 
medans were  driven  out.  No  further  invasion  is  mentioned 
until  '')'/'].  when  the  Punjab  was  made  tributary  to  Sabuktagin 


i82  F.VOLTITTON  OF  GOVERNMENTS  AND  LAWS 

Sultan  of  Ghazni.  Ills  son  Mahmud  invaded  India  repeatedly 
with  his  armies  and  fuui^ht  successfully  great  battles,  as  the 
result  of  which  his  authority  was  extended  as  far  as  the 
Ganges.  Khusru,  a  son  of  the  last  of  the  Ghazni  dynasty, 
having  been  driven  out  by  the  Afghans  of  Ghor,  founded  at 
Lahore  a  short-lived  ]\lohammedan  dynasty,  but  the  Afghan 
Mussulman  w^aged  successful  war  against  his  son  and  took 
him  prisoner.  Under  Muhammed  Ghori  the  new  empire  was 
extended  by  successive  conquests  over  the  entire  northern 
plain  as  far  as  the  Brahmaputra.  At  the  death  of  Muham- 
med the  viceroy,  through  whom  he  had  governed  India,  pro- 
claimed himself  sultan  at  Delhi.  In  1294  Allah-ud-din  Khelji 
raised  himself  to  the  throne  of  Delhi.  He  extended  his  do- 
minions to  the  south  and  his  armies  penetrated  to  the  extreme 
south  of  the  Peninsula.  The  descendants  of  Allah-ud-din 
occupied  the  throne  but  five  years  when  in  1321  Gheyas-ud- 
din  Tuglak,  said  to  have  been  a  Turk,  established  a  dynasty 
which  lasted  till  the  invasion  of  Timur,  seventy  years  later. 

The  period  of  the  rule  of  this  dynasty  was  one  of  magnifi- 
cence at  court,  of  war  and  tyranny.  Revolts  against  the 
sultan  in  various  quarters  prepared  the  way  for  Timur,  who 
invaded  India  in  1398  and  gained  most  unenviable  fame  for 
his  cruel  slaughter  and  enslavement  of  the  people.  The  city 
of  Delhi  and  many  other  towns  were  sacked,  and  the  people 
of  all  ages  and  sexes  indiscriminately  slaughtered.  Great 
numbers  of  captives  were  taken  back  to  his  capital  at  Samar- 
kand as  slaves.  He  established  no  permanent  government 
and  his  invasion  was  followed  by  a  period  of  small  states 
without  any  great  authority. 

In  1525  Baber,  the  fifth  in  descent  from  Timur,  by  invita- 
tion of  the  governor  of  the  Punjab,  invaded  India  and 
founded  the  great  Mughal  empire,  which  however  was  not 
generally  recognized  during  his  life,  but  his  actual  authority 
extended  over  only  a  limited  and  not  clearly  defined  territory. 
His  son  Humayun  was  driven  out  of  India  by  Sher  Shah,  a 
native  of  Bengal,  who  established  an  extensive  though  brief 
authority  over  Hindostan.  Akbar,  the  son  of  Humayun,  ap- 
pears the  real  founder  of  the  Mughal  empire,  which  lasted 


INDIA  183 

till  finally  overthrown  by  the  British.  Humayiin  died  in  1556 
when  Akbar  was  fourteen  years  old. 

Under  the  guardianship  of  Bairam  Kahn  he  first  established 
his  authority  in  the  Punjab  and  on  the  upper  Ganges  about 
Delhi  and  Agra.  From  this  basis  he  extended  his  dominion 
over  the  greater  part  of  India.  He  was  not  only  a  great  con- 
queror but  a  noted  civil  governor.  He  reformed  the  system 
of  taxation  in  such  manner  as  to  make  the  burden  fall  more 
equitably  than  before  and  at  the  same  time  produce  ample 
revenue.  He  established  many  public  schools,  was  tolerant  to 
all  religions,  and  it  is  said  that  though  raised  a  Mohammedan 
he  had  no  fixed  religious  belief.  In  his  military  system  he 
employed  native  Rajputs  on  equal  terms  with  his  Mughals. 
His  favorite  wife  was  a  Rajput  princess.  He  was  superior 
to  all  his  predecessors  in  his  understanding  of  the  character 
and  prejudices  of  the  people  over  whom  he  ruled,  and  he  suc- 
cessfully adapted  his  system  to  the  vast  mixed  population  of 
his  dominions.  Under  his  grandson  Shah  Jahan  the  empire 
reached  its  period  of  greatest  magnificence  of  which  many 
noted  monuments  remain. 

The  Taj  Mahal  at  Agra,  erected  as  the  mausoleum  of  his 
favorite  wife,  is  regarded  as  a  model  of  beauty  and  purity  in 
architecture  never  surpassed.  Aurangzeb  succeeded  his 
father.  Shah  Jahan,  in  1658  and  before  his  death  extended 
the  empire  over  the  Deccan  and  to  the  extreme  south  of  the 
peninsula.  While  his  territory  was  extended,  the  fibre  of  his 
government  seems  to  have  weakened,  and  after  his  death  the 
empire  fell  in  pieces  never  again  to  be  reconstructed.  Petty 
sovereigns  divided  the  dominion  and  exercised  authority  over 
its  various  districts.  In  1500  the  first  permanent  lodgement  of 
Europeans  in  Hindostan  was  effected  by  the  Portuguese  on 
the  Malabar  coast.  For  a  century  thereafter  they  enjoyed  a 
monop(jly  of  oriental  trade.  The  Dutch  were  the  first  to 
break  this  monopoly  and  were  soon  followed  by  the  English 
and  French,  whose  struggle  for  supremacy  will  not  now  be 
considered. 

While  it  seems  altogether  natural  and  i)roper  to  speak  of 
India  as  a  single  country  and  to  consider  its  historv  as  an 


i84  EVOLUTION  OF  C.OVERfTMlENTS  AND  LAWS 

entirety,  the  foregoing  brief  summary  of  some  leading  events 
omits  mention  of  princes  without  number,  who  from  time  to 
time  ruled  over  more  or  less  of  the  country.  From  the  earliest 
times  the  wealth  of  India  has  been  proverbial,  and  it  has  at- 
tracted alike  the  traders  and  the  armed  invaders.  The  latter 
have  been  of  two  classes,  those  who  came  merely  to  add  ter- 
ritory to  a  foreign  empire,  and  those  who  came  to  gain  set- 
tlements in  the  country.  The  Aryan  movement  is  the  earliest 
of  which  records  have  been  preserved,  but  they  found  the 
country  already  peopled.  When  and  whence  those  early  peo- 
ple came  upon  the  scene  cannot  be  told. 

While  the  original  Aryan  invaders  do  not  appear  to  have 
ever  established  a  government  over  the  whole  country  or  even 
over  the  greater  portion  of  it,  they  did  impose  their  religion, 
their  laws  and  customs  in  nearly  all  parts  of  the  peninsula. 
Some  of  the  early  tribes,  however,  never  accepted  their  teach- 
ings and  their  religion  has  been  corrupted  with  local  super- 
stitions to  such  an  extent  in  many  places  as  hardly  to  be 
recognizable.  Nor  are  their  laws  governing  marriage,  in- 
heritance and  property  rights  in  general  uniformly  followed. 
On  the  contrary  local  superstitions  and  customs  have  pro- 
duced infinite  variety  of  worship,  ceremony  and  local  law. 

The  practice  of  burning  widows  with  the  dead  bodies  of 
their  husbands,  called  suttee,  is  chargeable  to  the  Brahmans 
and  was  followed  by  people  of  the  highest  classes.  It  was 
esteemed  a  virtuous  act  for  the  widow  to  follow  her  husband, 
and  the  meaning  of  the  word  suttee  or  sati  is  a  virtuous  wife. 
Though  this  custom  is  an  ancient  one  it  is  not  sanctioned  by 
the  Vedas  or  the  code  of  Manu.  It  was  practiced  by  other 
ancient  people,  notably  the  Scyths.  Some  of  the  Kandh  clans 
practiced  human  sacrifice  in  most  cruel  and  revolting  manner 
until  very  recent  times. 

The  institution  of  caste  has  shown  the  most  marked  staying 
qualities,  and  the  original  simple  divisions  of  the  Aryan 
invaders  into  four  castes  has  been  followed  by  more  than  a 
thousand  different  divisions,  partaking  of  the  nature  if  not 
strictly  designated  as  castes.  Very  few  of  the  people  of  all 
India  are  wholly  exempt  from  caste  distinctions.     Some  of 


INDIA  185 

the  wild  hill  tribes  are  said  to  have  no  castes,  and,  of  course, 
Europeans  and  other  new  comers  into  the  country  cannot  be 
said  to  have  castes.  They  are  nevertheless  classed  by  them- 
selves by  the  Hindus,  and  the  system  of  classification  is  so 
deeply  rooted  that,  as  to  the  great  mass  of  the  people  of  India, 
all  kinds  of  people  are  assigned  to  some  class,  and  the  observ- 
ance of  their  own  castes  by  the  Hindus  operates  to  a  great 
extent  in  fixing  a  caste  for  all  newcomers.  The  main  excep- 
tion to  the  prevalence  of  strict  castes  is  among  the  Moham- 
medan population.  As  they  look  to  the  Koran  for  their  law 
and  as  Mohammed  made  no  distinction  of  race,  color  or  con- 
dition among  his  followers,  the  true  believer  has  no  basis  for 
caste  distinctions.  There  are,  however,  especially  among  the 
Mongolian  and  negroid  races,  many  nominal  Mohammedans, 
who  adopt  many  Hindu  customs  and  observe  caste  restrictions. 
Of  the  whole  population  nearly  three-fourths  are  classed  as 
Hindus  in  religion,  and  nearly  three-fourths  of  the  remainder 
as  Mohammedans.  The  natural  tendency  for  those  engaged 
in  a  particular  profession  or  business  to  associate  and  com- 
bine, because  of  similar  tastes  and  common  interests,  has 
supplemented  the  policy  of  the  early  Aryans,  which  seems  to 
have  aimed  mainly  at  the  maintenance  of  the  supremacy  of 
the  conquering  race  and  of  the  rank  of  the  Brahmanical  order. 
Neither  in  religion  nor  in  law  has  a  uniform  system  ever 
prevailed  over  the  whole  country.  Different  modifications  of 
the  pantheon  of  gods  have  been  made  to  meet  the  demands  of 
different  tribes,  till  under  the  general  head  of  Hindus  are 
included  all  grades  and  shades  of  faith  and  ceremony,  from 
those  of  the  high  minded  Brahman,  who  seeks  by  rigid  fast- 
ing, meditation  and  prayer  to  divest  his  soul  of  all  evil  pas- 
sions and  worldly  desires,  in  order  that  he  may  find  rest  with 
the  divine  essence,  to  the  worshippers  of  the  destroyer,  who 
seek  by  human  sacrifices  to  avert  the  wrath  of  wicked  gods. 
The  leading  features  of  the  caste  system  seem  to  be  adapted 
to  all  races  and  conditions.  Not  only  do  those  belonging  to 
the  higher  castes  insist  on  its  rigid  maintenance,  but  those 
belonging  to  the  inferior  ones  find  that  it  accords  with  their 
wishes  and   inclinations.     The  old   saying   that   "birds   of   a 


i86  EVOLUTION  OF  GOVERNMENTS  ANJ3  LAWS 

feather  flock  together"  expresses  the  natural  tendency  of  those 
occupying  similar  social  position  or  engaged  in  similar  pur- 
suits to  associate,  and  in  India  this  natural  tendency  has  been 
crystallized.  The  leading  advantages  of  the  system  would 
seem  to  be  that  it  tends  to  make  the  low  born  content  with 
their  lot,  and  that  each  son  is  brought  up  to  folUnv  the  calling 
of  his  father,  by  which  means  each  profession  and  calling  will 
be  filled  by  men  better  educated  and  qualified  than  where 
there  is  a  constant  shifting  of  members  of  the  family  from 
one  calling  to  another.  The  reality  of  even  this  advantage 
may  be  debatable.  On  the  other  hand  to  western  men  the 
tyranny  of  the  system  seems  intolerable.  Its  rigidity  prevents 
spontaneity  and  progressiveness,  and  removes  all  hope  from 
the  low  born  of  rising  out  of  his  class.  The  evolution  of  the 
race  seems  to  require  selection  from  the  whole  mass  of  popu- 
lation, if  a  maximum  of  vigor  is  to  be  maintained  among  the 
leaders.  Dynasties  of  rulers  invariably  degenerate  and  either 
die  out  or  are  cast  out  because  of  their  weakness  or  vice. 
Though  the  village  system  is  regarded  by  many  writers  on 
law  and  government  as  primitive  and  an  embryonic  govern- 
ment, it  prevailed  over  most  of  India  till  the  advent  of  the 
British,  and  is  still  maintained  throughout  a  great  part  of 
the  country.  The  details  of  the  system  vary,  its  leading  char- 
acteristics are  a  well  defined  district  of  land  occupied  by  a 
community,  whose  local  afi^airs  are  regulated  by  officers  usu- 
ally chosen  by  the  people  but  sometimes  hereditary.  In  a 
large  percentage  of  the  villages  the  title  to  the  land  was  held 
in  common  and  taxes  to  the  sovereign  were  paid  by  the  com- 
munity as  a  unit  from  the  proceeds  of  the  harvest.  The  vil- 
lage authorities  assigned  the  land  for  tillage  to  the  various 
citizens,  and  adjudged  all  controversies  between  them.  The 
tillage  was  usually  separate,  even  where  the  title  was  in  com- 
mon. In  other  villages  the  land  was  held  in  severalty,  but  in 
dealings  with  the  sovereign  power  and  in  the  payment  of 
taxes  it  was  regarded  as  the  unit.  This  system  is  not  patri- 
archal, though  it  possibly  may  have  been  so  in  its  earliest 
form. 

The  kings  and  rulers  seem  to  have  regarded  the  people  as 


INDIA  i8> 

not  entitled  to  much  in  return  for  the  taxes  paid  and  services 
rendered  the  sovereign.  Aside  from  defending  them  against 
outside  foes,  the  government  never  attempted  much  in  their 
behalf.  In  public  works  there  is  nothing  worthy  of  mention 
but  palaces,  temples  and  the  great  roads  constructed  by  the 
Mughals.  Though  the  people  of  the  higher  castes,  the  twice 
born,  have  always  enjoyed  some  advantages  of  education,  it 
has  been  given  them  by  the  Brahman  caste  and  private  teach- 
ers, not  by  the  king.  The  fertility  of  the  soil  and  the  patient 
industry  of  the  people  have  led  to  most  excessive  and  burden- 
some taxation,  to  great  pomp  and  luxury  in  the  palaces  and 
to  extreme  distress  among  the  poor  when  crops  have  failed, 
as  they  occasionally  do.  One-third  of  the  gross  yield  of  the 
land  seems  to  have  been  regarded  as  about  the  right  proportion 
to  take,  and  under  the  Mughals  this  was  exacted  from  the 
villagers  and  is  at  this  day  by  the  British  in  many  parts  from 
the  best  lands. 

Nowhere  else  on  the  face  of  the  earth  can  be  found  so  dense 
a  population,  covering  such  a  vast  extent  of  country,  living 
under  an  ancient  system  of  laws  and  yet  without  a  general 
government,  as  existed  in  India  at  the  advent  of  the  British. 
China  during  most  of  its  history  has  had  a  well  organized 
governmental  system,  whose  authority  has  been  recognized 
over  most  or  all  of  its  territory.  Its  people  also  have  been 
mainly  of  one  race.  India  exhibits  the  peculiar  spectacle  of  a 
vast  empire,  with  endless  diversity  of  races,  speaking  many 
different  languages,  yet  recognizing  and  obeying  in  its  main 
precepts  a  code  of  laws  promulgated  in  the  dim  past  by  un- 
known persons,  a  code  which  was  never  promulgated  by  a 
sovereign  power  having  dominion  over  the  ancestors  of  the 
people  or  the  land  in  which  they  dwell.  It  owes  its  authority 
mainly  to  the  teachings  of  the  Brahmans  and  to  its  adoption  as 
the  rule  of  decision  by  the  judges  and  rulers  in  past  ages,  as  it 
has  been  adopted  and  followed  by  the  British  in  recent  times. 
.Some  analogies  to  this  may  be  found  in  the  adoption  of  the 
principles  of  the  Roman  civil  law  by  countries  never  subject 
to  the  empire,  and  in  the  adoption  of  the  Koran  as  the  law 
of   all    Mohanimcilan^,   but   in   the   one   case   the   system   was 


i88  EVOLUTION  OF  (iOVBRNMENTS  AND  LAWS 

gradually  developed  under  a  stronj^  g;overnment  ruling  a  vast 
empire,  and  in  the  other  the  authority  of  the  law  is  consequent 
on  religious  faith. 

The  area  of  the  country  we  have  been  considering  is  nearly 
a  million  and  a  half  square  miles  and  it  now  has  a  population 
of  nearly  or  quite  250,000,000.  Among  this  vast  mass  are 
remnants  of  what  are  believed  to  be  the  earliest  inhabitants  of 
the  country,  whose  lowest  type  is  exhibited  by  the  savage 
Andaman  islanders,  wholly  devoid  of  all  civilization.  Superior 
to  these  yet  still  very  low  in  the  scale  of  humanity  are  the 
monkey  faced  tribes  of  the  south,  the  Rihls  and  other  pre- 
datory hill  tribes  and  the  almost  numberless  fragmentary 
remnants  of  races  that  in  past  ages  may  have  held  extensive 
districts.  Above  these  are  the  industrious  descendants  of 
Mongolian  stocks,  the  Dravidians,  the  Indo  Chinese,  the  Af- 
ghans, Mughals,  Arabs,  Persians  and  the  proud  descendants 
of  that  race  which  composed  the  Vedas  and  promulgated  the 
codes.  This  vast  empire  is  now  subject  to  the  government  of 
a  little  island  on  the  most  remote  border  of  the  hemisphere. 
The  government  of  the  British  will  be  considered  in  another 
place. 

Though  Great  Britain  has  long  maintained  its  sovereignty 
over  India,  it  has  never  attempted  to  impose  its  system  of  laws 
on  the  people.  The  ancient  stratification  of  society  still  per- 
sists and  the  code  of  Manu  is  still  the  basis  of  the  law  adminis- 
tered in  the  courts.  This  code  is  so  remarkable  in  its  precepts 
and  has  so  profoundly  influenced  the  vast  population  of  India 
for  thousands  of  years  that  it  is  well  worthy  the  careful  study 
of  every  investigator  in  the  field  of  human  laws.  A  summary 
of  its  provisions  with  copious  extracts  from  the  more  striking 
parts  will  be  found  in  the  Appendix. 

The  student  who  seeks  a  comprehensive  knowledge  of  the 
rules  actually  applied  throughout  all  that  vast  country,  extend- 
ing from  the  valley  of  the  Indus  to  Siam,  encounters  a  most 
perplexing  multiplicity  of  details.  The  Code  of  Manu  is  recog- 
nized as  the  foundation  of  the  laws  of  Hindostan  and  also  of 
Burmah.  Siam  and  Ceylon,  yet  there  is  wide  divergence  in  the 
practical  application  of  it  in  different  places. 


INDIA  189 

As  a  result  of  the  teachings  of  Gautama  the  Code  of  Manu, 
though  still  recognized  as  the  basis  of  the  laws,  was  greatly 
modified  in  those  districts  where  the  Buddhist  faith  prevailed. 
The  Burmese  code,  called  the  DamatJiat,  gives  the  primary 
classification  of  men  as  Chiefs,  Brahmans,  wealthy  and  poor, 
and  elsewhere  the  mercantile  class  is  mentioned  as  a  distinct 
order.  In  the  twenty-third  section  of  the  fourth  volume  of 
the  Burmese  code,  the  Royal  family  is  mentioned  as  the  high- 
est class,  and  other  relations  of  the  King,  the  great  Chiefs, 
ministers  or  lords,  the  lesser  lords,  lords  of  lower  degree, 
wealthy  class  Brahmans,  thoogyccs  of  villages,  governors,  land 
measurers,  and  those  whom  the  King  had  advanced,  as  con- 
stituting the  next  class.  The  second  class  and  the  mercantile 
are  each  divided  into  the  great,  middle  and  lesser.  The  right 
of  the  King  to  raise  from  the  lower  to  the  higher  orders  is 
asserted  and  the  rigid  rules  of  inherited  castes  do  not  obtain. 
Though  the  system  e\olved  by  the  early  Aryan  invaders 
spread  over  all  India  as  the  basis  of  all  the  written  laws,  in 
the  east  it  has  been  modified  by  the  influence  of  Buddhism 
and  the  Chinese  and  in  the  west  by  Mohammedanism.  Ow- 
ing to  the  lack  of  a  single  governing  force  having  authority 
over  the  whole  country  no  version  of  the  code  has  at  any 
time  found  full  recognition,  even  throughout  the  whole  of  the 
Indian  peninsula,  and  the  actual  administration  of  the  law 
has  at  all  times  been  more  or  less  dependent  on  the  will  of 
despotic  rulers,  having  authority  over  more  or  less  of  the 
country,  according  to  circumstances. 

The  Burmese  code  exhibits  marked  differences  in  the  theory 
of  the  distribution  of  inheritable  property.  The  rules  given 
are  very  loose  and  indefinite.  On  the  death  of  the  father 
the  eldest  son  is  given  "the  riding  horse,  elephant  goblet,  betel 
apparatus,  sword,  clothes  and  ornaments,  and  of  the  slaves,  the 
l-etel  carrier  and  two  water  carriers;  and  let  the  mother  have 
her  clothes  and  ornaments,  goblet,  betel  apparatus,  and  all 
female  slaves.  Let  the  residue  be  divided  into  four  parts,  of 
wliich  let  the  eldest  son  ha\e  one  and  the  mother  and  younger 
children  ha\c  three.  This  is  the  law  when  the  mother  does 
not  marry  again;  if  the  m«Hher  uses  the  property  for  neces- 


190  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

sary  subsistence  let  her  have  the  right  to  do  so.  If  the  mother 
takes  another  husband  (a  thing  prohibited  by  the  code  of 
Manu),  the  portion  of  the  eldest  son,  animate  and  inanimate, 
shall  be  noted  before  witnesses  and  taken  care  of;  and  if  he 
be  too  young  to  separate  from  his  parents,  and  the  mother 
dies,  let  him  have  all  that  has  been  apportioned  to  him  above 
and,  having  divided  the  portion  of  the  mother  into  four  parts, 
let  the  stepfather  have  one  part,  and  the  eldest  son  three. 
The  original  property  and  debts  of  the  step-father  shall  not 
be  divided  but  of  the  mother's  original  debts  let  the  step- 
father pay  one- fourth ;  having  valued  the  house  let  the  step- 
father have  one-fourth."    Laws  of  Menoo,  Vol.  lo,  sec.  5. 

On  the  death  of  the  mother  "let  the  eldest  son  have  one 
male  slave,  one  pair  of  good  buffaloes,  one  pair  of  oxen,  one 
foreign  and  one  Burman  goat,  with  one  pay  of  arable  land ; 
with  the  exception  of  these  things  let  the  father  and  younger 
children  have  all  the  property  animate  and  inanimate." 

In  case  the  father  is  not  possessed  of  the  specific  property 
named,  compensation  in  money  is  provided  for  and,  if  not 
able  to  pay,  less  is  to  be  given  according  to  his  means. 

On  the  death  of  the  father  the  eldest  son  only  is  assigned 
his  share.  The  younger  sons  must  wait  till  the  death  of  the 
mother. 

When  both  father  and  mother  die  leaving  only  daughters, 
the  eldest  takes  all  her  mothers  clothes  and  ornaments,  and 
all  other  property  is  divided  into  twenty  parts,  of  which  the 
eldest  takes  one.  The  balance  is  then  again  divided  into 
twenty  parts,  and  the  next  daughter  takes  one,  and  after  a 
third  division  for  a  third  daughter  the  balance  is  divided 
equally  among  all. 

Where  father  and  mother  both  die  leaving  sons  only,  the 
eldest  takes  the  clothes  and  ornaments  of  the  father  and  the 
remaining  property  is  divided  into  tenths  of  which  he  takes 
one.  The  remainder  is  divided  into  tenths  of  which  the  sec- 
ond son  takes  one;  the  balance  is  again  divided  into  tenths 
of  which  each  of  the  others  takes  a  share,  and  the  remainder 
is  then  divided  equally  among  all. 

In  case  there  are  both  sons  and  daughters  the  eldest  son 


INDIA  igi 

takes  the  father's  clothes  and  ornaments,  the  eldest  daughter 
the  mother's,  and  the  residue  is  then  divided  into  fifteenths 
and  distributed  to  each  according  to  age  on  the  above  prin- 
ciple till  the  seventh  distribution  has  been  made,  and  the  bal- 
ance is  then  divided  equally. 

After  these  regulations  follow  others  fixing  the  rights  of 
step-fathers  and  step-mothers,  and  children  of  the  half-blood, 
of  collateral  relation,  and  providing  for  cases  which  would 
seem  likely  to  be  rare  and  exceptional.  The  tenth  volume  of 
the  Burmese  code,  which  relates  to  the  law  of  inheritance, 
contains  eighty-one  paragraphs  and  covers  fifty-six  pages. 
Besides  these  there  are  various  provisions  on  the  same  subject 
in  other  parts  of  the  code.  The  right  of  a  woman  to  own 
property  is  generally  recognized  throughout  India,  but  with 
varying  local  regulations. 

A  compilation  of  Hindu  laws  translated  from  the  Sanskrit 
into  Persian  and  from  the  Persian  into  English  called  the 
Gentoo  Code  contains  provisions  relating  to  property  rights 
in  quite  strong  contrast  with  western  laws. 

"If  a  man  owes  money  to  several  creditors,  he  shall  first 
discharge  that  debt  which  was  first  contracted  and  so  in  or- 
der."    Sec.  5,  page  25. 

This  would  seem  more  just  than  the  law  which  favors  the 
hard  creditors  who  first  attaches  his  debtor's  property. 

Gifts  made  under  the  impulse  of  violent  fear,  anger,  lust, 
grief,  by  mistake,  in  jest,  by  a  child  or  an  incompetent  person, 
or  when  intoxicated  may  be  recovered  back.  In  times  of 
calamity  a  woman  may  borrow  for  necessaries  and  bind  her 
husband  to  pay  the  debt,  and  the  husband  may  at  such  a  time 
gi\c  away  his  wife  with  her  consent.  The  father  may  also 
sell  or  give  away  his  son  with  his  consent. 

In  cases  of  partnership  capital  furnished  by  one  is  regarded 
as  efpiivalent  to  the  lal)<)r  of  another  and  profits  are  di\'i(led 
according  to  agreement  where  one  is  made,  but,  in  (he  absence 
of  an  express  contract,  according  to  the  amount  of  capital 
contributed  and  services  rendered. 

When  robbers  go  to  a  distant  country  and  return  with  their 
booty  this  code  prtnides  f(jr  its  division.     The  magistrate,  that 


192  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

is  the  ruler  of  the  district,  takes  one-tenth  to  one-sixth  of  the 
whole,  a  chief  takes  four  shares,  a  stout  man  two,  and  a  com- 
mon man  one. 

The  contracts  of  prostitutes  arc  recoij;nized  and  enforced, 
and  the  law  protects  them  from  violence  or  abuse. 

The  penalties  denounced  against  crime  by  the  Gentoo  code 
are  graded  all  the  way  from  a  small  fine  to  crucifixion,  the 
latter  punishment  being  imposed  for  highway  robbery  or 
robbery  committed  by  breaking  through  a  wall.  bV)r  killing 
a  goat,  a  horse  or  a  camel,  a  hand  or  a  foot  shall  be  cut  off, 
but  this  does  not  apply  to  those  who  make  their  living  by 
butchery. 

In  the  Burmese  code  very  great  prominence  is  given  to  do- 
mestic relations  and  penalties  for  illicit  sexual  intercourse. 
The  grounds  for  separation  of  husband  and  wife  are  many, 
and  minute  provisions  are  made  for  division  of  the  property 
in  cases  of  separation. 

The  religion  of  the  Buddhists  does  not  allow  capital  punish- 
ment. This  code  shows  many  marks  of  the  iniluence  of  the 
Buddhist  religion,  and  punishments  are  mainly  by  fines  and 
the  use  of  the  rattan.  In  no  case  is  the  death  penalty  im- 
posed by  the  code,  though  it  is  in  fact  sometimes  inflicted  by 
despotic  rulers,  and  the  evil  passions  of  men  sometimes  find 
expression  in  bloody  deeds,  notwithstanding  the  general  ac- 
ceptance of  a  religion  of  peace. 

Perhaps  this  code  states  the  immorality  of  war  as  pointedly 
and  gives  it  a  more  formal  sanction  than  any  other  authori- 
tative expression  of  legal  principles. 

"When  there  has  been  a  revolution  or  change  of  rulers,  in 
a  country,  there  are  four  cases  which  may,  and  four  which 
may  not  be  prosecuted.  Of  the  cases  which  may  not  l)e  prose- 
cuted, they  are  murder,  obscene  language  and  assault  with 
wounding,  theft,  and  adultery ;  these  are  the  four  which  shall 
not  be  prosecuted  after  a  change  of  kings.  The  five  which 
may  be  prosecuted  are  debt,  inheritance,  disputes  regarding 
lands  the  property  of  convents  (church  pro])erty)  hereditary 
slaves,  and  deposits;  these  are  the  five  which  may  be  prose- 
cuted notwithstanding  a  change  of  rulers."  Vol.  2,  Sec.  8, 
page  43- 


IXDIA  193 

No  similar  provision  is  contained  in  the  code  of  ]Manu. 

By  this  law  the  abominable  crimes  incident  to  war  are  ex- 
cnsed,  while  the  arbitrary  and  unjust  rules  of  slavery  and 
inheritance  continue  without  regard  to  the  fortunes  of  war. 
Though  the  principles  of  this  section  are  not  generally  em- 
bodied in  the  published  codes  of  the  Christian  states,  they  are 
recognized  and  enforced  in  practice.  Except  when  committed 
in  violation  of  military  discipline,  the  grossest  crimes  of  sol- 
diers go  unpunished. 

Not  only  have  the  Indian  law-makers  evolved  an  elaborate 
l)ody  of  written  rules  for  the  determination  of  the  rights  of 
j)arties,  but  rules  of  pleading,  evidence,  presumption  and  prac- 
tice have  also  been  established.  By  the  Gentoo  code  a  person 
cannot  be  brought  into  court  when  celebrating  a  marriage, 
while  sick,  or  engaged  in  religious  duties  or  as  a  z^akeel,  at- 
torney, and  generally  if  at  work  he  must  be  allowed  to  finish 
his  task.  A  party  may  appear  in  court  either  in  person  or  by 
attorney,  except  in  cases  of  murder,  robbery,  adultery,  eating 
prohibited  food,  false  abuse,  false  witness  and  one  other 
disgusting  offence  in  which  the  principals  must  answer  in 
l)erson.  When  the  plaintiff  and  defendant  come  before  the 
court  the  plaintiff"  shall  state  his  case  so  "that  the  words  be 
few  and  the  meaning  extensive,"  and  that  the  first  and  last 
parts  be  well  connected  and  consistent.  If  he  states  his  case 
in  writing  the  defendant  must  then  do  so.  Numerous  rules 
of  pleading  are  given,  and  mistakes  subject  the  party  making 
them  to  a  fine,  but  not  to  the  loss  of  his  rights.  The  defend- 
ant must  answer  within  seven  days  and  if  he  fails  to  do  so 
judgment  may  be  rendered  against  him.  A  person  accused 
of  murder,  robl)ery,  scandalous  abuse  of  a  magistrate,  calling 
a  woman  unchaste,  destruction  of  valuable  goods,  criminal 
conversation  with  the  wife  of  the  father  other  than  the  mother 
of  the  accused,  or  brought  to  answer  a  matter  concerning  a 
cow,  a  dispute  over  a  slave  girl,  or  drinking  wine,  must  answer 
at  once.  In  all  other  causes  the  defendant  may  have  delay 
but  the  accuser  shall  in  no  case  make  delay,  except  in  case  of 
calamity.  The  Burmese  version  of  the  code  fixes  a  general 
statute  of  limitations,  barring  claims    for  monev,  lands   and 


194  F.VOLUTFOX  OF  noVK-RXAIKXTS   AND  LAWS 

slaves  held  adversely  for  ten  years;  but  in  cases  relating  to 
lands  and  slaves  given  to  pagodas  temples  and  convents, 
boundary  marks  between  cities  or  villages  and  a  slave  de- 
scended in  the  family  from  forefathers  of  the  owner,  and 
whose  class  is  unknown,  there  is  no  limitation  of  action.  The 
Gentoo  code  prescribes  eleven  years  for  chattels  and  twenty- 
one  years  for  land,  where  the  plaintiff  is  under  no  disability, 
with  a  longer  limitation  in  cases  of  trust,  extending  to  sixty 
years  where  it  relates  to  land.     By  this  code  it  is  provided : 

"When  an  arbitrator  of  discernment  hears  any  affair  he 
shall  first  demand  of  the  plaintiff  'What  is  your  claim?'.  The 
plaintiff  shall  then  relate  his  claim.  Afterward  he  shall  de- 
mand of  the  defendant  'What  answer  do  you  return  in  this 
case?'.  The  defendant  also  shall  then  repeat  his  answer. 
Upon  thus  having  heard  the  accounts  of  both  plaintiff'  and 
defendant,  he  who  thoroughly  investigates  the  nature  of  the 
affair  is  called  an  arbitrator  of  discernment,  and  such  an  arbi- 
trator as  this  shall  be  chosen."    Chapter  3,  Sec.  i,  page  103. 

"When  two  persons  upon  a  quarrel  refer  to  arbitrators 
those  arbitrators  at  the  time  of  the  examination  shall  observe 
both  the  plaintiff'  and  the  defendant  narrowly  and  take  notice, 
if  either  and  which  of  them  when  he  is  speaking,  hath  his 
voice  falter  in  his  throat  or  his  color  change  or  his  forehead 
sweat,  or  the  hair  of  his  body  stand  erect,  or  a  trembling- 
come  over  his  limbs,  or  his  eyes  water,  or  if,  during  the  trial, 
he  cannot  stand  still  in  his  place,  or  frequently  licks  or  moist- 
ens his  tongue  or  hath  his  face  grow  dry,  or  in  speaking  to 
one  point  wavers  and  shuffles  off'  to  another,  or  if  any  per- 
son puts  a  question  to  him,  is  unable  to  return  an  answer ;  from 
the  circumstances  of  such  commotions  they  shall  distinguish 
the  guilty  party."     Page  119. 

Rules  of  evidence  are  quite  different  from  those  prevailing 
in  the  West.  One  may  give  false  testimony  to  preserve  life, 
and  falsehood  employed  to  procure  a  marriage,  obtain  sexual 
intercourse  or  benefit  a  Brahman  are  excusal)le.  Page  130. 
Writings  may  be  proved  by  a  comparison  of  hands.  Second- 
ary evidence  in  the  form  of  hearsay  from  e\'ewitnesses  is 
allowed. 


INDIA  I9J 

"A  minor  until  fifteen  years  of  age,  one  single  person,  a 
woman,  a  man  of  bad  principles,  a  father,  or  an  enemy,  may 
not  be  a  witness,  but  if  the  father  and  the  enemy  are  men  of 
good  disposition  and  speakers  of  truth,  and  men  are  well  ac- 
cfuainted  with  the  goodness  of  their  dispositions  and  veracity, 
these  two  persons  may  be  witnesses."     Page  124, 

The  legal  profession  of  which  no  mention  is  made  in  the 
code  of  Manu  is  not  practiced  gratuitously  as  it  was  in  ancient 
Rome,  but  the  lawyer  is  a  paid  advocate  whose  right  to  com- 
pensation is  enforced.  Physicians  also  are  protected  by  the 
courts,  and  aided  in  collecting  their  pay.  The  Burmese  code 
])rovides : 

"Oh  King!  if  any  one  shall  call  a  doctor  to  prescribe  for  a 
sick  person,  and  the  doctor  for  the  sake  of  the  pay  and  to 
relieve  the  sick  person,  shall  administer  medicine  to  him ;  or 
if  the  doctor  is  called  to  wash  the  patient's  head  or  avert  the 
evil  influence  of  the  stars,  and  shall  go  to  where  he  is  called, 
and  holding  a  small  knife  or  stile  for  writing,  shall  only  lay 
hold  of  the  banisters  or  ascend  the  stairs,  and  if  the  sick  man 
before  his  arrival,  shall  obtain  relief,  and  on  recovery  shall 
ask  'did  you  use  any  charm? — did  you  give  me  one  of  your 
pills? — did  you  wash  my  head,  or  avert  the  evil  influences  of 
the  stars?' — and  insensible  to  friendship  shall  refrain  from 
paying;  if  the  doctor  have  an  affection  for  him,  he  may  get 
off  paying;  but  if  not  he  shall  pay  five  tickals  of  silver.  If 
a  good  doctor  reaches  the  banisters,  stairs  or  door;  and  a 
good  pleader,  though  he  do  not  state  the  case,  if  he  only  put 
up  the  sleeves  of  his  jacket,  or  set  down  preparatory  to  speak, 
they  shall  be  paid." 

"Any  good  pleader,  though  the  statement  of  his  case  may 
not  have  been  taken  down,  if  he  has  only  just  sat  down,  or 
put  up  the  sleeve  of  his  jacket,  shall  have  a  right  to  his  pay. 
There  shall  be  no  i)lea  that  the  case  was  not  noted. 

"If  the  client  shall  run  away  or  conceal  himself,  the  pleader 
shall  bear  the  whole  amount  of  the  decree.  If  he  produce  or 
hand  over  the  client,  he  is  free,  and  shall  have  a  right  to  ten 
per  cent  for  his  pay  and  security.  If  a  pleader  be  bad  he 
must  take  the  consequences;  if  a  court  messenger  commit  an\ 


196  EVOLUTION  OF  GOVERNMENTS  A.ND  LAWS 

wrong,  he  must  take  the  consequences ;  the  cause  he  is  engaged 
in  shall  not  suffer. 

"If  a  pleader  shall  have  gained  a  cause  he  has  a  right  to  a 
percentage.  If  he  loses  it,  he  has  a  right  to  a  reasonable 
remuneration.  If  it  be  a  matter  of  life  or  death,  or  redemp- 
tion for  the  same,  and  the  client  shall  not  suffer  death,  or  pay 
the  forfeit;  the  pleader  has  a  right  to  a  fee  of  thirty  tickals 
of  silver,  the  price  of  his  client's  body." 

"If  a  man  shall  say  to  a  doctor  'give  me  medicine — if  I 
recover,  take  me  as  a  slave';  if  he  do  recover,  and  do  not 
wish  to  become  the  slave  of  the  doctor,  he  shall  have  a  right 
to  the  legal  price  of  his  body,  thirty  tickals  of  silver."  Vol. 
2,  sees.  19  and  20,  page  49. 

In  Burmah  trial  by  ordeal  is  allowable,  but  in  a  far  more 
mild  form  than  that  which  once  obtained  in  Europe. 

"Oh,  excellent  king !  the  decisions  by  ordeal  are  as  follows : 
1st.,  each  of  the  parties  are  made  to  take  one  tickals  weight  of 
water  in  their  mouth,  and  light  candles  of  equal  length ;  this 
is  called  the  trial  by  fire :  2d.  the  trial  by  water,  both  parties 
are  made  to  go  under  water :  3d,  both  parties  are  made  to 
chew  one  tickals  weight  of  rice;  4th,  both  parties  to  dip  into 
molten  lead.  Of  these  four,  in  the  trial  by  fire,  let  the  person 
whose  light  goes  out  first  be  the  loser  if  before  the  light  goes 
out,  one  shall  cough  out  the  water  from  his  mouth,  in  con- 
sequence of  some  portion  having  gotten  into  the  trachea,  let 
him  lose;  if  the  lights  go  out  together,  and  neither  cough  out 
the  water,  let  them  spit  out  the  water,  and  on  weighing  it,  the 
person  whose  water  weighs  least,  loses.  In  the  trial  by  water, 
let  the  person  who  first  comes  up  lose.  In  the  trial  by  chewing 
rice,  let  each  be  made  to  chew  one  tickal's  weight,  and  if  be- 
fore the  cup  with  which  time  is  measured  sinks,  the  rice  of 
one  be  all  finished,  or  swallowed)  and  one  not,  let  the  one 
whose  rice  is  not  finished  lose;  if  they  be  finished  together, 
let  them  wash  out  their  mouths  in  a  cup,  and  let  him  in  whose 
water  there  is  the  greatest  portion  of  rice  lose,  and  let  him 
whose  water  is  the  cleanest  win.  As  regards  dipping  into 
(molten)  lead  let  the  person  who  is  burned  lose,  and  he  who 
is  not  burned  win.  Thus  the  recluse  said."  Vol.  9,  sec.  16, 
page  254. 


INDIA  197 

Witchcraft  was  recognized  and  dreaded  and  is  detined,  de- 
tected and  punished  in  accordance  with  the  provisions  of  the 
next  section  which  gives  some  idea  of  the  superstitions  which 
prevail  in  that  country. 

"Oh,  excellent  king!  as  regards  the  seven  kinds  of  witches, 
or  wizards ;  there  is  the  witch  who  is  so  by  reason  of  his 
condition ;  the  two  who  are  so  by  reason  of  medicine ;  the 
four  who  are  hereditarily  so  by  reason  of  the  Nat  of  their 
parents,  taking  up  his  abode  in  the  person  continually,  these 
are  the  seven.  Of  these  seven  the  witch  called  hniau-ivcn, 
or  kaway  myouk,  is  the  greatest ;  next  below  him  is  the  hneet- 
padat,  the  next  is  icng-ta-licn  or  goung-pyan,  the  next  zauga- 
nee,  the  next  tha-tsong,  the  next  kyay-tsong,  and  the  next 
let-touk-tsong. 

"Of  these  kinds  of  wizards,  the  atha-tsong,  kyay-tsong  and 
let-tsong  are  those  who  at  night  eat  flowers  and  parched  grain 
within  the  enclosure  around  their  own  houses,  fire  issuing 
from  their  mouths.  Of  these  the  kyay-tsong  and  the  let-tsong, 
become  witches  by  taking  certain  medicines ;  the  atha-tsong 
are  so  constitutionally,  they  do  not  bewitch  people.  If  they 
are  thrown  into  water  seven  cubits  deep,  they  can  sink  so  as 
to  leave  one,  two  or  three  knots  of  the  rope  above  water. 
These  are  not  proper  objects  to  be  banished  from  the  village 
or  district  but  the  person  who  accuses  them  is  not  to  be  held 
in  fault,  he  had  a  right  to  accuse  them.  It  shall  not  be  said 
that  they  sank  in  the  water  or  that  they  floated.  The  state- 
ment of  both  parties,  accuser  and  accused,  is  true ;  they  are 
and  they  are  not  witches ;  let  them  therefore  bear  the  expenses 
equally. 

"Besides  these ;  the  kazvay  cannot  sink  in  the  water,  and  the 
kncct-padaf,  though  with  great  exertion,  he  can  get  under  the 
water,  he  can  only  sink  two  knots  (or  cubits),  five  are  left 
above  water ;  the  ieng-ta-lien  and  the  zau-gancc  are  the  same. 
These  four  are  wizards  by  reason  of  the  Nat,  who  has  been 
worship|)cd  bv  the  ancestors  in  succession,  taking  up  his  abode 
in  their  bodies.  They  cat  the  food  put  out  for  them  in  the 
small  flat  bamboo  frames  used  for  winnowing  grain,  and  in 
little  baskets;  they  bewitch  people  so  as  to  cause  their  death, 


198  EVOLUTION  OF  GOVE.RNM.ENTS  AND  LAWS 

and  then  eat  them ;  they  also  dig  up  the  human  l)odies  from 
the  grave  and  eat  them.  Of  these  (the  last),  three  cannot 
bewitch  a  person  across  a  running  stream,  and  even  in  the 
same  village  or  district,  they  cannot  bewitch  a  person  seven 
houses  distant.  If  these  float,  they  must  be  banished  the 
district.  The  kaivay  can  bewitch  a  person  even  if  a  stream 
intervene,  so  this  witch  must  be  banished  beyond  several 
streams,  to  free  the  village  from  his  influence.  In  these  seven 
matters,  these  are  truly  the  traditionary  rules  from  the  be- 
ginning of  the  world  for  trying  any  man  or  woman  who 
practices  witchcraft.  In  accordance  with  them,  let  the  guar- 
dians of  the  law,  the  king,  nobles,  tJioogyccs,  and  heads  of 
villages,  after  having  arranged  all  the  preliminary  steps  in 
strict  conformity  with  the  ceremonial  prescribed  for  the  trial 
of  the  seven  kinds  of  wizards  by  the  ancient  teachers,  select 
a  piece  of  still  water  where  there  is  no  current,  and  in  which 
there  are  no  stumps  of  trees,  rocks,  or  inequalities,  and  throw 
them  into  it.  All  matters  connected  with  witchcraft  are  only 
made  clear  by  the  ordeal  of  water.  As  regards  the  doctors 
tamcc,  yooaytan,  and  other  things,  they  are  uncertain,  and  not 
to  be  depended  on,  whether  the  witch  has  bewitched  another, 
and  the  fact  is  discovered,  or  the  witch  or  wizard  of  them- 
selves confess  that  they  are  so.  The  four  witches  above  men- 
tioned, even  if  people  are  afraid  to  associate  with  them, 
should  be  admonished  by  the  three  gems  (god,  the  law,  and 
the  priests),  and  warned  to  desist  (from  these  evil  practises) 
and  they  should  be  called  on  to  declare  in  the  presence  of  the 
gems  that  they  will  observe  the  (five)  moral  duties  and  will 
renounce  their  bad  habits,  and  to  swear  by  the  three  gems 
that  they  will  in  future  practice  good  works.  This  is  the 
way  good  kings,  embryo  Boodahs,  decide,  and  if  the  king 
passes  sentence  in  like  manner,  the  rains  will  be  abundant,  the 
rivers  full,  and  the  country  flourishing  and  quiet.  Thus  the 
son  of  the  king  of  Brahmahs,  the  recluse  called  Menoo  said." 
The  race  which  developed  so  complete  a  system  of  laws  and 
of  the  administration  and  application  of  them  to  all  forms 
of  controversies  has  utterly  failed  to  construct  a  form  of 
government  adapted  to  wide  dominion  or  designed  to  check 


INDIA  199 

the  abuses  of  rulers.  All  the  great  empires  of  India  of  which 
we  have  any  account  have  been  established  by  foreign  con- 
(juerors. 

The  authority  of  the  king  was  in  most  instances  established 
by  military  force.  He  might  be  a  member  of  either  the  Brah- 
man or  Cshttriya  caste  but  very  rarely  of  an  inferior  one. 
The  superiority  of  the  Brahmans  has  beien  perpetuated  by 
education  rather  than  by  military  force  or  political  combina- 
tion. The  Brahmans  learned  and  conducted  the  religious 
rites  and  ceremonies  and  claimed  to  stand  next  to  the  gods. 
They  were  the  teachers  and  expositors  of  the  laws  and  to 
them  were  referred  all  questions  of  right.  Their  enduring  as- 
cendency is  clearly  traceable  to  education  and  the  recognized 
law  of  inheritance,  not  merely  of  property,  but  also  of  caste, 
of  personal  status,  as  a  superior  order. 

The  Brahmans  from  very  early  times  have  been  readers 
and  writers.  The  mass  of  literature  produced  in  the  past  is 
very  great.  Just  when  and  how  the  various  provisions  found 
in  the  codes  first  came  to  be  adopted  there  is  no  available 
means  for  determining. 

The  religious  conceptions  of  the  people  have  tended  to  in- 
dividuality and  segregation  rather  than  extended  combina- 
tions. The  idea  has  prevailed  that  a  man  may  purify  and 
elevate  his  own  soul  by  separation  from  his  fellow  men, 
through  meditation  and  religious  studies  and  observances. 
Testing  moral  worth  by  the  good  done  to  others  and  the 
value  of  social  combinations  by  the  advantages  of  mutual 
help,  seems  to  have  been  generally  discountenanced.  Perhaps 
it  may  be  difficult  to  establish  a  charge  of  general  lack  of 
fraternal  feeling  among  the  people,  but  it  seems  clear  that 
there  has  not  been  great  capacity  for  organizing  and  combin- 
ing to  accomplish  common  ends.  The  common  mistake  of 
rating  the  relation  of  the  individual  to  an  imaginary  personal 
grxl  as  of  more  importance  than  his  relation  to  his  fellow 
man  and  of  assuming  that  there  can  be  merit  in  conduct 
which  does  not  tend  to  the  well  being  either  of  the  individual 
himself  or  some  other  person,  has  ])re\ailc(l  there,  yet  pos- 
sibly not  more  generally  than  in  other  parts  of  the   world. 


200  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

To  abstain  from  all  crimes  and  vice  is  the  observance  of  a 
part  of  the  moral  law,  but  the  more  important  and  more  diffi- 
cult task  is  to  promote  the  welfare  of  the  individual,  his  family 
and  all  others  whom  he  can  aid.  The  first  may  be  termed 
passive  morality,  the  second  active.  Passive  morality  affords 
peace  and  repose,  active  morality  leads  to  a  full  and  glorious 
life  of  enjoyment  and  satisfaction.  In  India  as  well  as  in 
Europe  the  most  extended  combinations  of  the  strength  and 
vigor  of  men  have  been  formed  for  vicious  purposes.  The 
activities  of  war  have  generally  appeared  greater  than  those 
of  peace,  though  exerted  for  immoral  ends.  Thousands  of 
years  of  combinations  of  men  to  destroy  each  other  have  not 
yet  taught  them  to  make  equally  great  combinations  for 
mutual  aid. 

The  relative  value  of  the  civilization  of  any  country  can- 
not be  safely  gauged  by  the  conditions  existing  at  some  se- 
lected point  of  time.  If  estimated  in  the  eleventh  century, 
ILurope  must  have  been  condemned  as  the  country  of  robbers 
and  murderers,  or  if  during  the  thirty  years  war  as  one  in 
which  the  people  generally  had  gone  mad  over  religious  medi- 
tations and  discussions. 

The  people  of  the  United  States  of  America  from  1861  to 
1865  must  have  been  condemned  as  a  great  family  of  fratri- 
cides, who  deliberately  sought  each  other's  destruction  without 
just  cause  on  either  side. 

Measured  by  the  conditions  prevailing  throughout  the  last 
one,  two  or  three  thousand  years,  it  may  well  be  claimed  that 
the  civilization  of  India  has  been  superior  to  that  of  Europe. 
There  have  been  more  people,  and  they  have  been  less  at  war 
with  each  other  and  better  supplied  with  enjoyable  things  than 
the  Europeans  as  a  whole.  It  is  only  within  the  past  hundrefl 
years  that  population  has  multiplied  rapidly  in  Europe  and 
the  general  scale  of  comfort  among  the  masses  materially  ad- 
vanced. All  this  gain  comes  from  diminished  efforts  to  de- 
stroy each  other  and  more  numerous  and  extensive  combina- 
tions for  mutual  profit  and  advantage.  It  is  strange  indeed 
that  men  are  so  slow  to  |)erceive  how  fjuickly  and  bountifully 
obedience  to  the  command  to  love  and  help  one  another  is 
rewarded. 


INDIA  201 

If  all  men  knew  that  they  must  remain  on  earth  through 
successive  incarnations  and  must  find  heaven  or  paradise  here 
and  not  elsewhere,  possibly  there  would  be  more  disposition 
manifested  to  make  the  world  better  during  this  life  in  order 
to  prepare  it  for  the  next.  Whether  the  souls  of  this  genera- 
tion shall  return  and  inhabit  the  earth  in  the  next  or  not  is  a 
matter  of  belief  rather  than  of  knowledge,  but  certain  it  is 
that  our  children  and  their  descendants  must  abide  in  it  till 
the  race  becomes  extinct.  No  legacy  can  be  passed  down  to 
posterity  of  such  inestimable  value  as  a  well  learned  lesson 
of  peace,  concord  and  mutual  aid.  The  boundaries  of  the 
moral  law  will  be  found  coterminous  with  those  of  the  true 
lelations  of  man  to  man  and  to  the  living  beings  on  earth. 
British  rule  in  India  has  not  yet  revolutionized  the  educational 
system.  The  policy  of  giving  free  and  universal  instruction 
to  the  young  does  not  prevail  in  the  British  Isles  and  very 
naturally  would  not  be  carried  into  India.  The  British  have 
however  made  progress  in  introducing  those  great  exponents 
of  modern  civilization,  the  railroad,  telegraph,  printing  press 
and  post  office.  Through  these  practical  lessons  of  coopera- 
tion are  taught  and  local  animosities  are  diminished  by  com- 
mercial intercourse  and  social  contact.  The  eradication  of 
caste  prejudices  is  a  task  of  great  difficulty  and  can  only  be 
effected  by  radical  changes  in  the  educational  system  and  re- 
ligious teachings.  The  British  maintain  their  rulership  largely 
Ijy  taking  advantage  of  local  animosities  and  caste  distinctions 
through  which  the  natives  are  deterred  from  combining,  and 
the  government  employs  one  to  curb  another.  Increased  in- 
tercourse with  each  other  and  with  the  outside  world  must  in 
time  produce  their  logical  effects  on  the  people,  but  the  inertia 
of  such  a  mass  is  very  great  and  can  only  be  overcome  in  a 
long  period  of  time  or  by  an  exceptional  wave  of  enlighten- 
ment, such  as  comes  to  any  peo[)le  only  once  in  many  cen- 
turies. India  has  had  its  experiences  of  this  kind  in  the  past 
and  may  again  in  the  future. 

Note. — The  extracts  from  the  code  of  Mami  arc  taken  from  the  trans- 
lation of  Sir  WiUiam  Jones  edited  by  G.  C.  1  louj^Iiton  and  published  by 
Cox  &  Baylis,  London  in  1X25.  Those  from  tlu'  lUirmese  Code  are  from 
a  translatidn   itulilislud   by   (Ik-    llaptist   Mission   at    I'liikidi-lpbia   in    1848. 


CHAPTER  X. 


China 


In  the  study  of  any  subject  allowance  must  be  made  for 
perspective  in  order  to  gain  a  just  com|)rehension  of  it.  China 
is  not  merely  geographically  at  the  antipode  to  western  Eu- 
rope and  America,  but  it  is  equally  remote  and  dissimilar  in 
its  civilization.  Eirst  consider  what  the  Chinese  Empire  is 
geographically.  In  area  it  covers  about  4,200,000  scjuare 
miles,  about  421,000  square  miles  more  than  all  Europe. 
China  proper  has  an  area  of  about  1,312,326  or  about  389,000 
square  miles  less  than  Europe,  exclusive  of  Russia.  In  climate 
it  includes  all  varieties  from  the  tropical  district  of  Kwang 
Tung,  to  the  regions  of  perpetual  snow  in  the  mountains  of 
Thibet  and  Mongolia.  In  soil  it  has  all  gradations  from  the 
inexhaustible  fertility  of  the  rich  loess  lands  of  Chili,  Shan-Si, 
Shen-Si,  Kan-suh  and  Ho-nan  to  the  barren  rocks  and  sandy 
deserts  of  Gobi,  and  the  equally  barren  peaks  of  the  Thian- 
Shan  and  Kuen-Lun.  Its  surface  shows  every  variety  of 
formation  from  level  plain  to  craggy  mountain,  and  the  most 
varied  flora  from  the  dense  growth  and  endless  variety  of  the 
tropics  to  the  poverty  and  barrenness  of  the  regions  of  per- 
petual frost.  Its  majestic  rivers  are  but  slightly  inferior  to 
the  Mississippi,  the  Amazon  and  the  Nile.  Its  fauna  is  rich 
and  varied  in  species  and  numbers.  But  in  nothing  else  is  it 
so  marked  as  in  the  numbers  of  its  people  and  its  unique 
civilization.  The  latest  estimates  accredit  the  empire  with 
400,000,000  or  about  45,000,000  more  than  all  Euroi)e  con- 
tains. While  the  empire  includes  many  tribes  not  of  Chinese 
stock,  and  difTering  more  or  less  in  type  from  the  Chinese, 
the  great  bulk  of  the  population  is  distinctly  of  one  race, 
speaking  one  language,  with  no  more  difference  of  dialect 
than  is  found  in  England,  Erance  or  Germany.  This  vast 
empire  is  now,  and  for  many  centuries  has  been,  ruled  by  one 

202 


CHINA  203 

government,  while  Europe  with  its  boasted  superiority  is  di- 
vided at  this  day  into  nineteen  separate  and  independent  na- 
tions. Not  only  do  the  people  of  one  of  these  nations  speak 
a  language  different  from  that  of  nearly  every  other,  but 
several  of  the  nations  include  people  speaking  many  different 
tongues.  The  United  Kingdom  of  Great  Britain  and  Ireland, 
with  a  population  about  equal  to  that  of  the  province  of 
Kiang-Su,  includes  English,  Welsh,  Scotch  and  Irish.  Russia 
includes  Laps,  Finns,  Russians,  Poles,  Slavs,  and  Cossacks, 
dift'ering  widely  from  each  other  in  language,  customs  and 
race  characteristics. 

China  proper  is  divided  into  eighteen  provinces,  but  all 
are  under  one  government  and  one  system  of  laws.  The 
political  map  of  Europe,  ever  since  history  began,  has  been 
subject  to  frequent  and  great  changes.  The  nineteenth  cen- 
tury has  seen  nations  rise  and  fall  and  boundaries  of  nations 
expand  and  contract  from  one  decade  to  another,  to  such  an 
extent  as  to  render  a  map  twenty  years  old  utterly  unreliable. 

While  China  has  had  its  internal  wars  and  has  at  times  been 
subjected  to  a  divided  rulership,  it  still  has  maintained  its  in- 
tegrity as  a  nation  through  thousands  of  years.  It  has  been 
conquered  by  Tartars  without  revolutionizing  its  customs 
and  laws,  and  with  but  slight  effect  on  the  great  Chinese  mass. 
Through  all  changes  and  vicissitudes  the  civilization  to  be 
found  in  China  has  been  distinctly  Chinese.  Long  before 
letters  were  introduced  into  Greece,  the  Chinese  had  their 
unique  system  of  characters.  The  name  of  the  inventor  and 
date  of  the  invention  are  given  in  one  tradition  as  Fuh-hi 
3200  B.C.  and  in  another  as  Tsang-ki  2700  B.C.,  either  date 
however  is  sufficiently  remote  to  precede  the  time  when  Cad- 
mus carried  the  alphabet  into  Greece  by  over  1500  years. 
That  much  progress  in  agriculture  and  the  arts  had  been  made 
long  before  the  Greek  tribes  migrated  from  Asia  Minor  into 
Greece,  is  amply  proved  by  the  historical  records  of  the  Chi- 
nese, which  extend  back  in  credible  and  definite  form  at  least 
as  far  as  the  reign  of  Yaou  2356  B.C.  The  first  weaving  of 
silk  is  a.scribed  to  Si-ling-shi.  wife  of  the  lunperor  Ilwang-ti, 
about  2600  B.C. 


204  KVOT.ITTIOX  OF  OOVF.RXMFA'T?;  AKD  F  \\V^ 

For  early  records  of  China,  we  look  only  to  China.  No 
neighboring  nation  can  furnish  us  contemporary  side  lights. 
Of  all  the  people  of  eastern  Asia  the  Chinese  first  invented  a 
written  language  and  first  became  historians.  Whether  in 
authentic  writings  they  antedate  the  Egyptians  is  a  question 
on  which  archeologists  may  differ,  but  certain  it  is  that  their 
early  histories  are  far  more  numerous  and  copious  than  those 
of  any  other  people  on  earth.  Tt.is  surmised  by  some,  that 
the  progenitors  of  the  race  migrated  into  China  from  the 
vicinity  of  the  Caspian  Sea,  but  the  writer  does  not  know  on 
what  evidence,  for  no  ancient  Chinese  record  is  referred  to 
as  proving  it,  and  there  are  no  older  or  other  records  on 
the  subject. 

The  Chinese,  like  the  Egyptians,  were  first  found  in  the 
country  they  now  inhabit.  Their  civilization  has  grown  and 
continued  to  abide  where  it  now  exists.  It  has  until  very 
recent  times  received  no  marked  impulse  from  without  except 
the  Buddhist  religious  teachings.  No  conquering  ht^rde  has 
ever  swept  over  the  provinces  of  China  and  supplanted  tlie 
ancient  race  with  its  own  people.  The  Tartar  conquest  begun 
by  Jenghiz  Kahn  and  completed  under  Kublai,  while  bloody 
and  destructive  in  the  paths  of  the  invading  armies,  failed  to 
destroy  or  supplant  the  ancient  stock.  The  subsequent  Man- 
chu  conquest  was  a  change  of  rulers,  but  slightly  affecting 
the  great  multitude.  Throughout  all  ages  China  has  been  secure 
against  outside  foes,  except  such  as  entered  from  the  North. 
The  barren  inaccessible  heights  of  the  Himalayas  on  the  south 
have  ever  interposed  an  impassible  barrier  against  invasion 
from  that  direction.  The  barren  steppes  of  Thibet  and  Mon- 
golia could  only  be  reached  from  the  west  after  crossing  the 
mountain  ranges  of  central  Asia.  Only  from  the  north  has  it 
been  found  practicable  to  lead  in  an  invading  army,  and  that 
cold  and  inhospitable  country  has  not  frequently  poured  out 
hosts  of  such  magnitude  as  to  overrun  the  densely  peopled 
provinces  of  China,  and  never  sufficient  to  drive  out  the  people. 

Like  all  other  people,  in  their  accounts  of  the  origin  and 
early  history  of  their  race,  the  Chinese  narrate  what  is  evi- 
dently fabulous  and  imaginary.     Records  cannot  antedate  the 


CHINA  205 

art  of  making  them,  and  traditions  receive  an  accretion  of 
the  marvelous  as  they  are  passed  down  from  generation  to 
g>eneration,  till  the  real  basis  of  truth  is  covered  up  and  indis- 
cernible. The  period  of  2,267,000  -f"  years,  given  by  Chinese 
writers  as  having  elapsed  between  the  creation  of  man  and 
the  time  of  Confucius,  is  entitled  to  no  more  and  no  less 
credit  than  any  other  attempt  at  fixing  the  date  of  man's 
advent  on  earth.  Nor  could  anything  be  more  whimsical  than 
an  attempt  to  blend  and  harmonize  authentic  Chinese  history 
with  the  Mosaic  account  of  creation. 

The  earliest  accounts  and  traditions  locate  the  Chinese  along 
the  Yellow  River  in  and  about  the  province  of  Shan-si,  and 
while  Chinese  writers  mention  numerous  long  dynasties  an- 
terior to  his  time,  Fuh-hi  appears  to  be  about  the  first  ruler 
whose  existence  at  some  date  appears  fairly  certain.  The 
date  of  his  accession  to  the  throne  is  variously  estimated  from 
2852  to  3322  B.C.  He  and  his  seven  successors  are  said  to 
have  reigned  747  years,  giving  an  average  of  93^  years  to 
each.  While  such  periods  are  shorter  than  the  lives  of  Bibli- 
cal patriarchs,  they  are  equally  improbable  and  afford  no  data 
for  computing  the  time  of  events.  To  Tuh-hi  is  attributed 
the  Yih-King,  or  Book  of  Changes,  which  stands  at  the  head 
as  the  most  ancient  of  the  Five  Classics.  The  work  appears 
to  us  rather  whimsical,  being  made  up  of  essays  on  important 
themes,  illustrated  by  a  combination  of  whole  and  broken  lines 
treated  as  different  principles,  placed  one  above  the  other  in 
various  orders,  and  which  are  regarded  as  symbolical  of  the 
subjects  discussed.  Perhaps,  however,  as  symbols  these  linear 
combinations  may  have  meant  more  to  the  Chinese  than  they 
do  to  us. 

The  early  reigns  are  sometimes  spoken  of  as  though  the 
sovereign  occupied  the  same  relation  to  the  people  as  in  later 
years,  yet  it  is  said  that  the  successors  of  Hwang-ti  were 
elected  by  the  people.  The  reign  of  Yao  2356  B.C.  is  taken 
as  the  starting  j)oint  of  authentic  history.  In  his  reign  there 
was  a  great  flood  causing  a  permanent  overflow  of  much  land. 
This  was  remedied  by  works  carried  on  under  Yu,  who  after- 
ward succeeded  to  the  throne.     Little  appears  to  be  recorded 


2o6  EVOLUTION  OF  GOVERXMEXTS  AXD  LAWS 

concerning  the  condition  of  the  people  or  the  constitution  of 
the  government.  The  ruler  is  always  treated  as  the  subject 
of  the  theme  and  matters  of  real  interest  are  mentioned  only 
incidentally.  It  is  evident,  however,  that  in  the  earliest  times 
of  which  any  accounts  are  preserved,  the  Chinese  tilled  the 
soil,  had  domestic  animals  and  wove.  Yu  established  markets 
and  fairs  to  accommodate  trade.  In  his  time  the  Empire  is  said 
to  have  extended  from  twenty-three  to  forty  north  latitude  and 
six  degrees  west  and  ten  degrees  east  from  Peking;  this  in- 
cludes the  greater  part  of  China  proper.  The  reigns  of  Shun 
and  Yu  have  been  immortalized  by  Confucius  and  possibly  he 
has  depicted  their  characters  in  accordance  with  what  a  ruler 
should  be,  rather  than  with  what  these  rulers  really  were. 

From  the  time  of  Yu  the  throne  became  hereditary,  but  the 
system  prevailing  appears  to  have  been  similar  to  the  feudal 
system  of  Europe  in  later  times.  If  the  character  of  the  rule 
of  Yu  is  correctly  given  in  the  answer  of  Kaogao,  as  given  in 
the  Shu  King,  he  acted  on  most  enlightened  maxims.  "Your 
virtue,  O  Emperor,  is  faultless.  You  condescend  to  your  min- 
isters with  a  liberal  ease,  you  rule  the  multitude  with  a  gen- 
erous forebearance.  Your  punishments  do  not  extend  to  the 
criminal's  heirs,  but  your  rewards  reach  to  after  generations. 
You  pardon  inadvertent  faults  however  great,  and  punish  de- 
liberate crime  however  small.  In  cases  of  doubtful  crimes 
you  deal  with  them  lightly,  of  doubtful  merit  you  prefer  the 
highest  estimate.  Rather  than  put  to  death  the  guiltless,  you 
will  run  the  risk  of  irregularity  and  laxity.  This  life  loving 
virtue  has  penetrated  the  minds  of  the  people,  and  this  is  why 
thev  do  not  render  themselves  liable  to  be  punished  by  your 
officers." 

The  historic  accounts  of  the  early  rulers  of  China  are  essen- 
tially the  same  as  those  of  monarchs  everywhere  who  are 
subject  to  no  efficient  restraints.  There  were  wise  and  able 
founders  of  dynasties,  who  ruled  for  the  good  of  the  people, 
followed  by  degenerate  offspring  who  w^ere  dissolute,  cruel 
and  oppressive.  No  instance  is  recorded  in  history  of  a  long 
succession  of  hereditary  monarchs  who  have  maintained  a  high 
standard  either  of  capacity  or  virtue.    It  is  hardly  worth  while 


CHINA  207 

at  this  time  to  moralize  on  the  causes  of  tlie  degeneracy  of 
ruHng  houses.  The  fact  that  it  invariably  takes  place  is  the 
matter  of  prime  importance. 

The  Shang-  dynasty  founded  1766  B.C.  ended  1122  B.C. 
and  was  followed  by  the  Chau.  The  reign  of  its  founder 
Wu  Wang  is  looked  to  as  a  kind  of  golden  age  in  Chinese 
history,  yet  he  committed  the  blunder  of  dividing  the  empire 
into  seventy-two  petty  feudal  states,  leaving  himself  only  a 
small  portion  of  territory  and  power.  The  number  of  these 
states  was  at  one  time  as  high  as  125  and  in  the  time  of  Con- 
fucius fifty-two.  The  effect  of  this  division  was  unceasing 
internecine  wars,  which  would  have  rendered  the  whole  an 
easy  prey  to  a  powerful  outside  foe.  In  936  B.C.  the  Tartars 
made  their  first  incursions  of  which  we  have  any  account, 
which  were  continued  from  time  to  time  thereafter.  At  the 
birth  of  Confucius  557  B.C.  the  empire  was  in  this  unhappy 
condition.  Though  the  Chau  dynasty  covers  a  period  of  weak- 
ness in  the  central  power  and,  as  has  always  happened  under  a 
feudal  system,  of  strife  and  bloodshed  among  feudatories,  it 
yet  endured  longest  of  any  in  the  history  of  the  empire,  cover- 
ing a  period  of  873  years  down  to  249  B.C.  It  was  during 
this  dynasty  that  those  men  appeared  on  earth  who  have  ex- 
ercised such  marked  influence  on  Chinese  thought,  habits,  cul- 
ture and  society.  Gautama,  Confucius,  Mencius  and  Lao  Tze, 
have  each  left  distinct  and  enduring  imprints  of  their  teach- 
ings. Gautama,  deified  as  the  incarnation  of  Buddha  by  his 
devotees,  taught  men  to  do  good  deeds  and  live  pure  lives  in 
order  that  they  might  be  happy  in  a  future  state  of  existence. 
Though  a  native  of  northern  India,  his  disciples  spread  his 
doctrines  into  China  in  an  early  day,  and  his  followers  soon 
became  very  numerous  and  have  so  continued  to  the  present 
time. 

Confucius  was  a  teacher  of  earthly  wisdom  rather  than  the 
founder  of  a  religious  sect.  He  claimed  no  higher  sanction 
for  his  doctrines  than  reason  and  the  tests  of  experience.  He 
sought  to  establish  justice  and  promote  the  happiness  of  men 
on  earth.  One  of  the  means  to  these  ends  was  a  strong  gov- 
ernment honestly  and  faithfully  administered.     Another  was 


2o8  EVOiLUTION  OF  GOVERNMENTS  AND  LAWS 

education  of  the  young  in  correct  principles.  In  character 
he  was  much  Hke  Socrates,  Ijut  more  practical  in  his  methods. 
He  was  not  averse  to  assuming  rcsponsiljility  and  putting  his 
maxims  into  practical  operation.  Far  more  than  any  other 
man,  he  has  moulded  Chinese  customs  and  character  down 
to  the  present  time.  The  antiquity  of  Chinese  literature  is 
well  shown  by  the  works  of  Confucius.  His  Shu  King,  or 
Book  of  Histor}',  consists  of  ancient  public  documents  from 
the  time  of  Yao  2356  B.C.  to  King  Hiang  627  B.C.  These 
include  im[)crial  ordinances,  plans  drawn  up  by  ministers  for 
the  guidance  of  the  emperor,  imperial  proclamations,  vows 
of  the  monarch  Ijefore  Shang-ti  when  going  out  to  battle, 
and  mandates,  announcements,  speeches,  etc.  by  ministers  of 
state.  These  were  edited  by  Confucius  with  his  comments. 
Confucius  gathered  the  learning  of  the  past  and  inculcated 
the  study  of  the  wisdom  of  the  ancients.  He  was  far  more 
a  compiler  than  an  author.  Of  the  five  classics,  though  all 
bear  marks  of  his  labors,  only  the  Chun  Tsiu  or  Spring  and 
Autumn  Record  was  originally  written  by  him.  The  Shi 
King  or  Book  of  Odes  is  a  collection  of  odes  and  songs  origi- 
nally gathered  from  all  the  provinces  by  the  emperor  Wang 
Wau,  numbering  three  thousand,  most  of  which  were  lost 
however  before  the  time  of  Confucius.  These  odes  were 
used  in  connection  with  public  and  religious  services.  Only 
311  of  them  are  now  extant. 

Not  the  least  important  in  its  practical  effect  on  after  gen- 
erations is  the  Li-ki  or  Book  of  Rites.  No  other  people  are 
so  fond  of  ceremony  as  the  Chinese.  How  far  back  in  an- 
tiquity this  fondness  extended  we  are  not  informed,  but  a 
ritual  is  attributed  to  Duke  Chau,  11 30  B.C.,  on  which  much 
that  is  observed  at  the  present  day  appears  to  be  founded. 
Though  filled  with  ceremonial,  the  book  of  Rites  also  teaches 
the  principles  governing  the  conduct  of  members  of  the  family 
toward  each  other,  of  citizens  toward  officials,  of  officials  to- 
ward citizens  and  each  other.  No  other  of  the  classical  books 
appears  to  have  exercised  so  profound  an  influence  on  suc- 
ceeding generations.  Not  only  has  it  established  a  vast  multi- 
plicity of  forms  and  ceremonies  to  be  observed  each  day,  but 


CHINA  209 

it  has  profoundly  impressed  on  all  generations  its  fundamen- 
tal principles,  respect,  amounting  very  nearly  to  religious  ven- 
eration, for  parents  and  rulers  and  politeness  to  everyone. 
With  these  classical  books  the  name  of  Confucius  is  insepar- 
ably connected.  Neither  of  them  is  a  law  book  in  the  sense 
in  which  the  term  is  used  in  the  west,  nor  yet  are  they  re- 
ligious compilations  in  a  western  sense,  but  many  of  the  rules 
they  contain  are  more  generally  obeyed  than  any  act  of  Con- 
gress or  Parliament,  and  many  of  the  moral  precepts  they 
teach  are  oftener  repeated,  and  as  generally  accepted,  as  any 
of  the  truths  contained  in  the  Bible  are  in  Europe  or  America. 

The  secret  of  the  remarkable  influence  of  these  "Five 
Classics,"  as  they  are  termed,  seems  to  lie  in  their  consonance 
with  Chinese  tastes  and  character.  No  other  people  have  half 
the  respect  for  what  is  ancient  that  they  do.  Though  put  in 
form  by  Confucius,  the  material  was  already  in  existence, 
and  he  professed  merely  to  compile  the  wisdom  of  the  past. 
The  age  in  which  Confucius  lived  was  one  of  weakness  in 
the  central  government  and  of  war  and  contention  among 
the  inferior  rulers.  Robbers  and  maurauders  appear  to  have 
been  numerous.  He  sought  to  permanently  remedy  the  evils 
resulting  from  these  conditions. 

The  Chau  dynasty  ended  with  the  accession  to  the  throne 
of  Chwang-si-ong  Wang.  After  but  three  days  reign  he 
died  leaving  the  empire  to  his  thirteen-year-old  son  Chi 
Hwangti.  By  the  extermination  of  the  imperial  house  he 
established  his  power,  and  by  conquest  of  the  petty  states 
extended  the  boundaries  of  the  empire  to  include  most  of 
China.  He  divided  the  country  into  thirty-six  provinces  over 
which  he  placed  governors,  whose  conduct  he  su])ervised. 
From  his  time  the  essential  features  of  the  present  govern- 
mental system  seem  to  date.  He  finally- overthrew  the  feudal 
system  and  firmly  established  the  central  power.  Nor  was 
he  possessed  of  the  spirit  of  reverence  for  the  wisdom  of  the 
past  which  has  since  l)cen  so  general.  The  title  he  assumed 
of  First  I'jnperor  and  his  destruction  of  all  records  written 
anterior  to  his  reign,  cviflencc  his  \anitv  and  desire  to  be 
regarded  in  history  as  the  founder  of  the  empire.     He  prob- 


2IO  EV0)LUT10N   OF  GOVERNMENTS  AND  LAWS 

ably  was  the  first  to  rule  all  China.  Although  his  order  to 
burn  all  ancient  writings  was  carried  out  and  nearly  500  of 
the  literati  were  burned  alive  to  complete  the  infamy,  not  all 
the  copies  were  found  by  the  vandals  and  so  much  was  pre- 
served in  the  memories  of  scholars,  that  the  classics  were  again 
reproduced  by  the  generation  then  living.  The  peculiar  sys- 
tem of  education  then  and  now  prevailing  in  China  resulted 
in  literal  memorizing  by  the  scholars  of  the  texts  of  these 
works.  Copies  of  some  of  the  classics  are  also  said  to  have 
been  found  more  than  a  century  later,  concealed  in  the  walls 
of  Confucius'  house.  The  destruction  and  reproduction  of 
these  works  indicate  the  prevalence  of  education  at  the  time. 

Though  detached  portions  of  the  great  wall  along  the  north- 
ern border  of  the  empire  had  been  built  by  the  states  for  their 
security  against  Tartar  incursions,  it  was  in  the  reign  of 
Hwangti  that  the  work  of  joining  these  together  into  one 
complete  and  continuous  defense  was  undertaken,  and  suc- 
cessfully carried  out  soon  after  his  death.  No  other  evidence 
remains  which  so  surely  proves  the  vast  extent  of  the  empire 
and  the  numbers  and  industry  of  the  people  as  this  great 
work.  The  construction  of  a  wall  1500  miles  long,  twenty- 
five  feet  thick  at  base  and  fifteen  at  top  from  fifteen  to  thirty 
in  height,  with  detached  towers  at  intervals,  could  not  have 
been  accomplished  w'ithout  the  cooperation  of  a  vast  multi- 
tude of  workers,  within  the  period  of  ten  years  in  wdiich  it 
was  built.  The  pyramids  of  Egypt  are  diminutive  in  com- 
parison with  this  great  structure. 

Chi  Hwangti  died  210  B.C.  His  weak  and  debauched  son 
was  unable  to  curb  the  turbulent  leaders  and  was  soon  de- 
posed. After  five  years  of  civil  war,  Liu  Pang  overthrew  his 
rival  and  was  proclaimed  emperor.  This  was  followed  by 
the  Han  dynasty  which  continued  till  A.D.  221.  The  founder. 
Liu  Pang,  is  accredited  with  having  instituted  the  system  of 
competitive  examinations  for  office,  though  by  some  authori- 
ties the  perfection  of  the  system  in  its  present  form  is  fixed 
at  A.D.  600.  His  successor  appointed  a  commission  to  restore 
as  far  as  possible  the  texts  of  the  literary  works  destroyed  by 
order  of  Hwangti.     A  period  of  comparative  peace  and  i)ros- 


CHINA  211 

perity  followed,  but  about  the  beginning  of  the  Christian  era 
a  rebellion  broke  out  followed  by  disorders  which  resulted  in 
the  establishment  of  the  eastern  Han  dynasty.  A.D.  65 
Buddhism  was  introduced  into  China  and  about  the  same  year 
an  embassy  was  sent  into  Turkestan,  soon  followed  by  an 
acknowledgment  of  sovereignty  of  the  emperor  over  Shen- 
Shen,  Khotan,  Kuche  and  Kashgar.  Their  allegiance,  how- 
ever, soon  fell  off. 

A.D.  220-221-222  the  empire  was  partitioned  between  three 
rival  warriors  into  three  kingdoms,  the  southern  of  which  in- 
cluded modern  Tonquin.  This  partition  was  followed  by  a 
long  period  of  war  and  turmoil,  during  which  power  was 
wielded  only  by  such  as  demonstrated  their  ability  to  maintain 
it.  In  284  an  embassy  from  the  Roman  Emperor  Theodosius 
was  sent  into  China.  This  appears  to  have  been  the  first  case 
of  official  intercourse  between  China  and  Europe.  In  419 
the  eastern  Tsin  dynasty  came  to  an  end  and  the  empire  stood 
divided  between  the  northern  and  southern.  Disorders  con- 
tinued until  590  when  Yang  Keen  established  the  Suy  dynasty. 
He  restored  comparative  peace  and  prosperity  to  the  country, 
though  he  fought  and  defeated  the  Tartars  and  Coreans.  He 
caused  a  survey  to  be  made  of  his  dominions  and  divided  them 
into  chau,  kucn,  and  hicn  with  corresponding  officers,  and  this 
arrangement  is  still  retained.  At  the  close  of  his  reign,  w'hich 
lasted  sixteen  years,  one  of  his  sons  forced  the  heir  to  strangle 
himself  and  usurped  the  throne.  He  waged  successful  war 
against  the  Tartars  and  increased  the  imperial  library  to 
54,000  volumes.  The  burdens  he  imposed  on  the  ]>eople,  in 
carrying  on  his  wars  and  schemes  of  internal  improvements, 
caused  a  rebellion  which  terminated  in  his  assassination. 

In  617  the  heir  to  the  throne  having  been  poisoned,  Li  Yuen, 
a  great  general,  proclaimed  himself  emperor  under  the  name 
of  Tai-tsung,  founder  of  the  Tang  dynasty.  During  his  reign 
China  was  without  doubt  the  most  civili7,ed  and  peaceful  comi- 
try  on  earth.  With  the  crumbling  of  the  Roman  TMUj)ire, 
Europe  had  settled  into  a  jjcriod  of  ignorance  and  l)rutality 
from  which  it  did  not  emerge  for  many  centuries.  Chang 
Kwan,  the  S(jn  and  successor  o\  Li  \  uen,  is  spoken  of  as  the 


212  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

most  accomplished  prince  in  Chinese  history.  He  estabhshed 
schools  and  perfected  the  system  of  literary  examinations. 
He  ordered  a  complete  edition  to  be  published  of  the  Classics, 
and  paid  special  honors  to  the  memory  of  Confucius.  He 
promulgated  a  code  for  the  direction  of  the  judges.  He  had 
a  just  appreciation  of  the  responsibilities  and  dangers  of  a 
sovereign  and  an  anecdote  is  related  that,  when  sailing  on  the 
river  Wei,  he  said  to  his  sons:  "See,  my  children,  the  wave^, 
which  iloat  our  fragile  bark  are  able  to  submerge  it  in  an 
instant.  Know  assuredly  that  the  people  are  like  the  waves, 
and  the  Emperor  like  the  fragile  bark." 

In  his  reign  the  boundaries  of  the  empire  were  greatly  ex- 
tended toward  the  west,  including  Kuche,  Khoten,  Khorasan, 
Kashgar  and  the  Turkish  tribes  as  far  as  the  Caspian  Sea, 
over  each  of  which  was  placed  a  military  governor.  Ambas- 
sadors were  sent  to  the  imperial  court  from  Persia  and  Rome. 
In  635  a  Roman  priest  was  received  and  the  emperor  built 
him  a  church.  On  the  death  of  Chang  Kwan,  posthumously 
styled  Tai  Tsung,  and  the  accession  of  Kaou-tsung,  his  wife, 
Woo  How,  became  the  real  master  of  the  emperor  and  at  the 
death  of  her  husband  she  set  aside  the  heir  and  seized  the 
throne.  She  ruled  with  vigor  and  her  armies  were  victorious. 
The  usual  round  of  vigor  on  the  throne,  followed  by  vice, 
external  wars  and  internal  rebellions,  followed  at  last  by  a 
division  of  the  empire  into  many  petty  warring  states,  filled 
out  the  balance  of  the  Tang  and  five  other  brief  dynasties  suc- 
ceeding it.  In  960  General  Chaou  Kwang-yin  was  proclaimed 
emperor  by  the  army,  which  at  that  time  seems  to  have  held 
all  j)Ower,  as  did  the  Praetorian  guard  at  Rome  in  earlier  times. 
In  the  tenth  and  eleventh  centuries  there  were  wars  with  the 
Tartars  and  Khitans,  resulting  at  times  in  the  payment  of 
tribute  by  China  to  the  Khitans. 

Abbe  Hue  relates  that  in  the  eleventh  centuiy  under  the 
Sung  dynasty  there  were  socialists  in  China  and  that  there 
was  much  radical  political  discussion.  At  the  head  of  the  re- 
formers was  Wangngan-Chi,  a  man  of  remarkable  talents, 
great  learning  and  energy.  Instead  of  showing  profound  de- 
votion to  the  wisdom  of  the  ancients,  he  attacked  the  existing 


CHINA  213 

order  of  things  unsparingly.  He  charmed  the  emperor  Chiu- 
tsoung  with  his  brilHant  presentation  of  his  doctrines  and 
gained  great  intiuence  over  him.  In  the  sketch  taken  from 
the  work  of  M.  Abel  Remusat  his  teachings  are  thus  sum- 
marized : 

"The  first  and  most  essential  duty  of  a  government  is  to 
love  the  people  and  to  procure  them  the  real  advantages  of 
life,  which  are  plenty  and  pleasure.  To  accomplish  this  ob- 
ject it  would  suffice  to  inspire  everyone  with  the  unvarying 
principles  of  rectitude,  but,  as  all  might  not  observe  them, 
the  state  should  explain  the  manner  of  following  these  pre- 
cepts, and  enforce  obedience  by  wise  and  inflexible  laws.  In 
order  to  prevent  the  oppression  of  man  by  man  the  state 
should  take  possession  of  all  the  resources  of  the  empire  and 
become  the  sole  master  and  employer.  The  state  should  take 
the  entire  management  of  commerce,  industry  and  agricul- 
ture, into  its  hands  with  the  view  of  succoring  the  working 
classes  and  preventing  their  being  ground  to  the  dust  by 
the  rich." 

Tribunals  were  to  be  established  to  fix  the  prices  of  pro- 
visions and  merchandise  and  taxes  to  be  imposed  exclusively 
on  the  rich  for  a  certain  number  of  years.  Aged  paupers  and 
unemployed  working  men  were  to  be  relieved  from  the  treas- 
ury. The  state  was  to  be  the  only  proprietor  of  the  land, 
which  should  be  assigned  to  the  farmers  by  public  authorities, 
who  should  also  distribute  seed,  to  be  returned  after  harvest. 
The  leading  opponent  of  these  doctrines  was  Sse-ma-kouang. 
who  employed  modern  arguments  in  opposition  to  these 
schemes.  Wangngan-Chi  was  given  full  authority  to  put  his 
reforms  in  operation  and  maintained  his  ascendency  through- 
out the  reign  of  Cheu-tsoung.  He  added  his  own  commen- 
taries to  the  classical  books,  and  reformed  the  examinations 
for  literary  grades  to  correspond  with  his  own  views.  This 
brought  down  on  him  the  hostility  of  the  literati  as  well  as 
of  all  the  privileged  classes,  and  on  the  death  of  the  emperor 
he  was  deposed  and  his  rival  put  in  power.  At  the  death  of 
Sse-ma-Kouang  great  honors  were  done  his  memory.  Later 
there  was  a  revulsion  of  sentiment  and   lu's  tomb  was  dese- 


214  FA'OTJTTTOX   OF  GOVERXArKNTS  AN'D  LAWS 

crated  and  great  honors  were  paid  to  the  memory  of  Wang- 
ngan-Chi.  While  according  to  Hue  Chinese  historians  record 
the  ill  success  of  these  schemes,  the  institutions  of  China  seem 
to  bear  some  marks  of  his  doctrines  at  this  day  as  will  appear 
more  fully  when  we  enter  on  a  consideration  of  the  existing 
system.  On  the  other  hand  it  is  said  that  the  reign  of  Chiu- 
tsoung,  lasting  forty-one  years,  is  the  brightest  period  of 
the  dynasty.  Certain  it  is  that  the  discussion  carried  on  at 
this  time  produced  a  profound  impression  on  Chinese  polity. 

Between  1127  and  11 63  the  Kins  pushed  their  conquests 
till  they  overran  the  northern  provinces  of  Chi-li,  Shen-se, 
Shan-se  and  Ho-nan  and  even  advanced  to  the  Yang-tsze- 
Kiang.  At  this  time  the  power  of  the  Mongols  was  growing. 
The  invasion  of  China  under  Jenghiz  Kahn  commenced  in 
1 2 12.  He  first  attacked  the  Kins  and  overran  most  of  the 
country  occupied  by  them.  He  was  succeeded  by  his  son 
Ogdai  who  completed  the  overthrow  of  the  Kin  dynasty. 
Among  the  Mongols  codes  of  laws  were  unknown,  but  Ogdai 
found  it  necessary  to  promulgate  a  code  and  divide  his  new 
and  populous  dominions  into  ten  departments.  Ogdai  was 
followed  after  two  brief  intervening  reigns  by  Mangu,  who 
extended  his  conquests  to  the  south  as  far  as  Cochin  China. 
On  his  death  in  1259  he  was  succeeded  by  the  illustrious  Ku- 
blai,  who  completed  the  subjugation  of  the  empire  and  ruled 
from  the  Yellow  Sea  to  the  Dnieper  and  from  the  Arctic  al- 
most to  the  Strait  of  Malacca.  This  was  the  first  foreign 
dynasty  ever  established  over  all  China. 

The  ambassadors  sent  by  the  Emperor  Theodosius,  A.D. 
284  do  not  seem  to  have  given  any  extended  report  of  what 
they  saw  in  China.  In  the  Arab  "Chain  of  Chronicles"  is 
contained  an  account  of  a  visit  to  the  Chinese  court  by  Ibn- 
Vahab  in  the  ninth  century.  The  description  of  what  he  saw, 
though  meager,  corresponds  with  other  accounts  of  the  state 
of  the  empire  at  that  time.  To  Marco  Polo  we  are  indebted 
for  the  first  full  and  satisfactory  account  of  China  and  its 
civilization.  His  visit  was  during  the  reign  of  Kublai,  whose 
empire  was  then  the  most  extensive  ever  established  in  Asia, 
so  far  as  is  known.     His  description  of  the  court  and  life  of 


CHINA  215 

Kublai  exhibits  a  combination  of  the  customs  of  the  Tartar 
nomad  and  the  ceremonious  Chinese  courtier.  During  De- 
cember, January  and  February,  the  emperor  resided  in  the 
palace  at  Kambahi.  This  palace  is  described  as  a  complete 
square,  a  mile  on  each  side.  This  is  but  the  outer  wall  and 
edifices;  within  are  others  affording  accommodations  of  all 
sorts  for  the  people  and  their  stores  of  goods,  etc.  and  gardens 
with  game  preserves,  and  fish  ponds.  The  inner  palace  he 
says  "is  the  greatest  that  ever  was  seen.  The  floor  rises  ten 
palms  above  the  ground  and  the  roof  is  exceedingly  lofty. 
The  walls  of  the  chambers  and  stairs  are  all  covered  with 
gold  and  silver  and  adorned  with  pictures  of  dragons,  horses 
and  other  races  of  animals.  The  hall  is  so  spacious  that  6,000 
can  sit  down  to  banquet,  and  the  number  of  apartments  is 
incredible.  The  roof  is  externally  painted  with  red,  blue, 
green  and  other  colors  and  is  so  varnished  that  it  shines  like 
crystal  and  is  seen  to  a  great  distance  around.  It  is  also  very 
strong  and  durably  built." 

The  city  is  described  as  very  large  with  broad,  straight  and 
regular  streets  inclosed  by  a  wall  with  twelve  gates  at  each 
of  which  1,000  men  kept  guard.  Around  the  city  were  twelve 
very  populous  suburbs  containing  many  stately  edifices.  The 
guard  of  the  great  Kahn  consisted  of  12,000  horsemen.  The 
festivals  held  on  the  Kahn's  birthday  and  the  beginning  of  the 
new  year  w^ere  celebrated  w'ith  great  magnificence  and  the 
making  of  presents.  On  the  latter  day  the  presents  from  those 
holding  land  and  offices,  he  states,  included  vast  quantities  of 
gold,  silver,  precious  stones  and  merchandise,  5,000  camels, 
100,000  white  horses  and  5,000  elephants,  all  of  which  were 
exhibited  in  a  grand  procession.  For  hunting  he  kept  leop- 
ards, lynxes  or  .stag-wolves  and  lions,  as  well  as  dogs.  On 
his  great  hunts  he  was  attended  by  two  parties  of  10,000  men 
each  with  5,000  dogs.  Besides  these  he  had  great  numbers  of 
gerfalcons,  vultures  and  falcons  for  hunting.  At  the  expira- 
tion of  the  three  winter  months,  the  great  Kahn  sallied  forth 
with  a  vast  retinue.  At  a  place  named  C'hoccia  he  pitched  his 
tents,  10,000  in  number.  That  in  which  he  held  court  was 
of  sufficient  siz:e  for  [,000  knights,  but  he  resided  in  another. 


2i6  EVOLUTION  OF  GOVERXMENTS  AND  LAWS 

The  inside  of  this  was  Hnecl  with  the  finest  furs.  No  one 
was  i)ermitted  to  take  "anie  from  March  to  October,  nor  to 
keep  dogs  or  falcons  within  twenty  days'  journey  from  his 
residence.  At  Shanchi  in  Tartary  he  had  a  very  large  palace, 
which  he  occupied  while  hunting-  in  that  region  and  as  a  resi- 
dence in  June,  July  and  August.  The  great  number  of  horses, 
dogs  and  other  animals  and  the  custom  of  moving  from  place 
to  place  and  dwelling  in  tents  and  movable  palaces,  accords 
with  the  inherited  tastes  and  habits  of  the  Tartar,  while  the 
elaborate  ceremonials  at  the  capital  and  elsewhere  show  the 
influence  of  Chinese  customs  on  the  Kahn.  The  description 
of  the  cities  and  country  visited  by  Marco  clearly  sh(3ws  how 
fully  the  great  Chinese  mass  retained  its  hal)its,  manners  and 
customs,  and  how  little  effect  the  Tartar  conquest  had  on 
Chinese  civilization  throughout  the  empire.  The  Tartar 
hordes  were  able  to  overcome  the  Chinese  armies,  but  the 
countless  multitude  of  busy  farmers,  manufacturers  and 
traders  plodded  along  the  same  as  before,  using  the  old  lan- 
guage, literature  and  customs.  Marco  describes  separately 
thirty-five  different  cities.  He  devotes  the  most  space  to 
Kin-sai,  modern  Hang  Chau,  which  he  says  was  without  doubt 
the  largest  city  in  the  world.  The  magnificence  of  its  streets, 
stone  bridges,  buildings,  canal,  lake,  boats,  markets  and  shops, 
as  well  as  on  the  great  multitude  of  people  and  endless  quanti- 
ties of  all  the  necessaries  of  life,  he  details  at  length.  In  all 
the  cities  he  visited  he  was  astonished  at  the  numbers  of 
people  and  the  abundance  of  the  provisions  for  their  comfort. 
Peace  and  plenty  were  the  rule  through  the  empire,  with  but 
few  exceptions. 

Marco's  description  of  the  system  of  government  and  of 
the  laws  is  very  incomplete.  He  says  there  were  twelve  very 
great  barons,  who  held  command  over  all  things  in  the  thirty- 
four  provinces.  They  all  resided  in  the  city  of  Kaml)alu, 
managed  all  the  provincial  affairs  according  to  their  will  and 
appointed  the  lords  of  the  provinces.  For  everv  province 
there  was  an  agent  and  a  number  of  writers  or  notaries.  The 
twelve  barons,  called  scieng  in  the  Tartar  language,  ordered 
the  army  to  move  wherever  they  willed,  subject  to  the  direc- 


CHINA  217 

tion  of  the  great  Kahn.  These  are  probably  the  same  officers 
he  refers  to  as  a  council  of  twelve  persons,  having  power  to 
dispose  of  the  lands,  governments  and  all  things  belonging 
to  the  state,  though  not  necessarily  so.  That  arbitrary  power 
was  exercised  by  the  Kahn  and  his  chief  officers  on  occasion 
is  clearly  manifest  from  the  account  he  gives  of  the  corruption 
and  oppression  exercised  by  a  Saracen  named  Achmac.  He 
gained  so  great  influence  over  the  Kahn  that  no  one  dared  to 
oppose  him.  "Any  charged  by  him  with  a  capital  offence, 
whatever  means  he  might  employ  to  justify  himself  and 
refute  the  accusation,  could  not  find  an  advocate,  for  none 
dared  to  oppose  the  purpose  of  Achmac.  Thus  he  unjustly 
caused  the  death  of  many,  and  was  also  enabled  to  indulge 
his  unlawful  propensities.  Whenever  he  saw  a  woman  who 
pleased  him,  he  contrived  either  to  add  her  to  the  number  of 
his  wives  or  to  lead  her  into  a  criminal  intimacy."  This  sway 
continued  twenty-two  years.  Finally  the  Kataians  formed  a 
plot  against  him  and  killed  him  in  the  palace.  For  this  the 
ringleaders  were  summarily  executed.  On  the  return  of 
Kublai,  who  was  absent  from  Kambalu  at  the  time,  he  in- 
quired into  the  cause  of  the  trouble  and,  finding  Achmac's 
seven  sons  equally  guilty  with  their  father,  who  had  conferred 
high  offices  on  them,  he  caused  them  to  be  flayed  alive. 

The  facilities  for  communication  with  remote  provinces 
were  exceptionally  fine.  Great  routes  were  established  along 
which,  at  intervals  of  from  twenty-five  to  forty  miles,  com- 
modious inns,  well  provided  with  comforts,  were  established. 
in  connection  with  which  horses  in  great  abundance  were 
constantly  kept.  Public  officials  and  messengers  were  lodged 
at  these  inns  and  furnished  relays  of  horses.  Of  these  inns 
there  were  more  than  10,000  and  of  horses  kept  in  connection 
with  them  more  than  200,000.  At  intervals  between  these 
stations  were  others  of  foot  runners,  three  miles  apart,  who 
carried  letters  and  packages  from  station  to  station  at  the 
rate  of  100  miles  a  day,  while  horsemen  made  from  joo  to 
300  miles  in  twenty-four  hours.  Similar  inns  .'Uid  couriers 
on  ff)ot  and  on  horsel)ack  are  still  maintained  in  some  ])arts. 
The  paternal  care  of  the  great  Kahn  over  his  people  Marco 
praises  in  this  language. 


2i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

"He  sends  his  messengers  through  all  his  kingdoms  and 
provinces,  to  know  if  any  of  his  subjects  have  had  their  crops 
injured  through  bad  weather  or  any  other  disaster,  and  if  such 
injury  has  happened  he  does  not  exact  from  them  any  tribute 
for  the  season  or  year,  nay  he  gives  them  corn  out  of  his  own 
stores  to  subsist  upon  and  to  sow  their  fields.  This  he  does  in 
summer,  in  winter  he  inquires  if  there  has  been  a  mortality 
r.mong  the  cattle  and  in  that  case  grants  similar  exemption 
and  aid.  When  there  is  a  great  abundance  of  grain  he  causes 
magazines  to  be  formed,  to  contain  wheat,  rice,  millet  or 
barley,  and  care  to  be  taken  that  it  be  not  lost  or  spoiled :  then 
when  a  scarcity  occurs  this  grain  is  drawn  forth  and  sold  for 
a  third  or  fourth  of  the  current  price."  The  monetary  sys- 
tem Marco  thus  describes, 

"With  regard  to  the  money  of  Kambalu,  the  great  Kahn 
may  be  called  a  perfect  alchymist.  for  he  makes  it  himself. 
He  orders  people  to  collect  the  l)ark  of  a  certain  tree  whose 
leaves  are  eaten  by  the  worms  that  si)in  silk.  The  thin  rind, 
between  the  bark  and  the  interior  wood,  is  taken  and  from  it 
cards  are  formed  like  those  of  paper,  all  black.  He  then 
causes  them  to  be  cut  in  pieces  and  each  is  declared  worth 
respectively  half  a  livre.  a  whole  one,  a  silver  grosso  of  Venice 
and  so  on  to  the  value  of  ten  bezants.  All  these  cards  are 
stamped  with  his  seal,  and  so  many  are  fabricated  that  they 
would  buy  all  the  treasuries  in  the  world.  He  makes  all  his 
payments  in  them  and  circulates  them  through  the  kingdom 
and  provinces  over  which  he  holds  dominion,  and  none  dares 
to  refuse  them  under  pain  of  death.  All  the  nations  under 
his  sway  receive  and  pay  this  money  for  their  merchandise, 
gold,  silver,  precious  stones  and  whatever  they  transport, 
buy  or  sell.  The  merchants  often  bring  to  him  goods  worth 
400,000  bezants  and  he  pays  them  all  in  these  cards,  which 
they  willingly  accept,  because  they  can  make  purchases  with 
them  throughout  the  whole  empire.  He  frequently  commands 
those  who  have  gold,  silver,  cloths  of  silk  and  gold,  or  other 
precious  commodities  to  bring  them  to  him.  Then  he  calls 
twelve  men  skillful  in  these  matters,  and  commands  them  to 
look  at  the  articles  and  fix  their  price.     Whatever  thev  name 


CHINA  219 

is  paid  in  these  cards,  which  the  merchant  cordially  receives. 
In  this  manner  the  great  sire  possesses  all  the  gold,  silver, 
pearls  and  precious  stones  in  his  dominions.  When  any  of 
the  cards  are  torn  or  spoiled  the  owner  carries  them  to  the 
place  where  they  were  issued  and  receives  fresh  ones  with  a 
deduction  of  three  per  cent.  If  a  man  wishes  gold  or  silver 
to  make  plate,  girdles  or  other  ornaments,  he  goes  to  the  office, 
carrying  a  sufficient  number  of  cards,  and  gives  them  in  pay- 
ment for  the  quantity  which  he  recjuires.  This  is  the  reason 
why  the  great  Kahn  has  more  treasure  than  any  other  lord 
in  the  world,  nay  all  the  princes  in  the  world  together  have 
not  an  equal  amount."  This  currency  went  out  of  use  on  the 
expulsion  of  the  Mongols.  The  new  dynasty  issued  notes  at 
first  but  discontinued  them  about  1455. 

Kublai  was  tolerant  of  all  religions  and  employed  Saracens, 
Christians  and  Buddhists  as  well  as  idolators  of  all  kinds  and 
unbelievers.  His  domestic  establishment  was  on  a  grand  scale. 
He  had  four  wives,  each  of  whom  ranked  as  an  empress  and 
had  300  maidens  with  eunuchs  and  other  attendants.  Besides 
these  he  had  his  concubines.  By  his  wives  he  had  twenty- 
two  sons  and  by  his  concubines  twenty-five.  How  many 
daughters  is  not  stated.  Marco  speaks  of  the  manufacture 
of  beautiful  porcelain,  descriljes  how  all  the  people  burn  black 
stones  instead  of  wood,  and  drink  wine  made  from  rice  and 
many  good  spices.  In  Kin-sai  each  householder  had  written 
on  his  door  the  name  of  all  the  members  of  his  household, 
which  he  revised  when  a  birth  or  death  occurred.  This  is 
still  required.  What  most  impressed  Marco  was  the  peace, 
good  order,  abundance  of  wealth  and  patient  industry  of  the 
people.  He  also  highly  praises  the  integrity  of  the  merchants 
of  Kin-sai.  Perhaps  the  most  lasting  monument  to  the  energy 
and  public  policy  of  Kublai  is  the  grand  canal  which  he  ex- 
tended and  greatly  improved. 

After  the  death  of  the  great  Kahn  the  Mongol  dynasty  was 
continued  under  Timur,  his  grandson,  and  Wu  Tsung.  Ching 
Tsung  last  of  the  line  came  to  the  throne  at  thirteen,  a  weak 
debauchee.  Hung  Wu,  a  plebeian  and  former  Buddhist  priest, 
headed  a  revolt,  which  resulted  in  the  expulsion  (if  the  Moii- 


220  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

gols  and  his  elevation  to  the  throne  as  the  founder  of  the 
Ming  Dynasty.  He  estabHshed  his  capital  at  Nanking  and 
reigned  thirty  years.  He  named  his  grandson  as  his  succes- 
sor, but  his  son  Yung-loh  after  five  years  seized  the  crown 
and  moved  the  capital  back  to  Peking  in  1403.  He  promul- 
gated a  code  of  laws,  framed  under  his  direction,  which  is  the 
basis  of  the  existing  system  of  today.  In  1616  the  Manchu 
Tartars  invaded  China  and  defeated  the  force  sent  against 
them.  Rebellions  followed  in  the  provinces,  ])y  taking  ad- 
vantage of  which  and  judiciously  combining  with  one  or  other 
of  the  factions,  the  jManchus  finally  gained  complete  ascend- 
ency and  in  1644  Shun-che  was  proclaimed  emperor  and  foun- 
der of  the  Tsing  dynasty,  which  continued  in  power  till  the 
revolution  of  191 2.  The  whole  empire  was  not  reduced  at 
once,  but  by  a  policy  combining  vigor  in  war  with  humane 
treatment  of  those  who  submitted,  all  opposition  to  the  new 
dynasty  was  gradually  overcome. 

A  strange  exhibition  of  power  was  that  by  which  the  people 
were  required  to  adopt  the  Tartar  mode  of  shaving  the  front 
of  the  head  and  braiding  the  hair  in  a  long  cue.  To  introduce 
and  enforce  a  fashion  by  command  even  of  a  despot,  is  some- 
thing rarely  attempted  and  much  more  rarely  enforced  and 
maintained.  This  mode  of  wearing  the  hair,  now  a  distinctive 
mark  of  the  Chinaman,  thus  appears  to  be  a  Manchu  fashion 
forcibly  imposed  on  the  Chinese.  It  is  said  that  man\-  pre- 
ferred to  lose  their  heads  rather  than  submit  to  this  Ijadge 
of  subjection. 

Kang-hi,  son  and  successor  of  Shun-che,  ascended  the  im- 
[)erial  throne  in  1661  when  only  eight  years  old.  He  was  a 
contemporary  of  Louis  XIV,  who  became  sovereign  of  France 
the  same  year.  The  reign  of  Kang-hi  was  long  and  illustrious, 
lasting  sixty-one  years.  He  extended  the  boundaries  of  the 
empire  and  devoted  his  energies  with  indefatigable  diligence 
to  the  improvement  of  the  system  of  government.  His  son 
Yung-ching  succeeded  him  in  1722  and  ruled  sixteen  years 
with  great  satisfaction  to  his  subjects.  He  was  succeeded  by 
Kien-hung  his  son  who  ruled  mainly  in  peace  for  sixty  years. 
In  his  reign  intercourse  with  western  nations  was  established 


CHINA  221 

and  embassies  were  received  from  Russia,  England  and 
Holland. 

The  first  three  Manchu  sovereigns  thus  ruled  the  empire 
with  prudence  and  vigor  for  one  hundred  and  thirty-five  years, 
with  few  wars  either  at  home  or  abroad,  and  none  seriously 
threatening  the  integrity  of  the  empire.  Subsequent  reigns 
have  been  less  fortunate  and  rebellions  and  foreign  wars 
have  become  more  frequent.  The  government  during  the 
last  century  has  been,  for  the  most  part,  without  vigor,  and 
the  universal  law  which  ultimately  brings  ruin  on  every 
hereditary  dynasty  has  just  brought  this  to  the  end.  The 
decay  of  despotic  power  does  not  necessarily  indicate  retro- 
gression on  the  part  of  the  nation  but  is  often,  nay  usually, 
the  forerunner  of  distinct  advancement.  Weakness  on  the 
part  of  the  government  always  induces  disorders,  but  these 
are  often  prompted  by  a  desire  for  better  conditions.  In 
spite  of  all  the  vices  and  imperfections  of  its  rulers,  the  pecul- 
iar civilization  of  the  Chinese  has  been  preserved  and  the 
almost  incredible  number  of  its  people  has  continued  to  in- 
crease. The  accounts  of  the  military  operations  of  its  rulers 
and  of  rebel  leaders,  are  calculated  to  convey  erroneous  im- 
pressions as  to  the  military  qualities  and  army  service  of  the 
people  in  general  In  western  countries  great  wars  have 
usually  called  out  a  very  large  proportion  of  the  whole  number 
of  males  of  military  age.  Not  so  in  China.  The  greatest 
army  ever  raised  in  the  whole  empire  probably  never  exceeded 
one  out  of  a  hundred  of  the  whole  population.  During  the 
greatest  wars  and  the  most  serious  rebellions,  trade,  agri- 
culture and  manufacture,  except  in  the  immediate  locality  of 
the  strife,  have  gone  on  without  very  serious  interruption. 
Thus  the  character  of  the  Chinese  people  and  of  Chinese 
civilization  has  been  essentially  unmilitary  ever  since  the  con- 
solidation of  the  vast  empire. 

All  authorities  agree  that  the  fundamental  idea  of  the 
Chinese  government  was  patriarchal.  The  emperor  was  re- 
garded on  the  one  hand  as  the  son  of  Heaven,  deriving  his 
power  directly  from  the  Supreme  Being,  and  on  the  other,  as 
the   father  and  mother  of  the   people,   responsible   for  their 


222  EVOLUTION  or-   GOVERNMENTS  AND  LAWS 

conduct  as  well  as  their  welfare.  He  was  the  supreme  legisla- 
tive, judicial  and  executive  power.  The  theory  of  the  origin 
of  his  power  is  not  essentially  different  from  that  of  other 
monarchs  who  rule  by  right  divine.  The  Chinese,  however, 
ingrafted  a  very  important  qualification  on  the  doctrine.  So 
long  as  the  emperor  ruled  well,  he  was  under  the  immediate 
protection  of  Heaven,  but  when  he  did  ill  it  was  an  indication 
that  the  favor  of  Heaven  had  been  withdrawn  from  him.  The 
attributes  of  the  princely  man,  taught  in  the  classics  as  the 
words  of  Confucius,  are  much  more  lofty  than  can  often  be 
found  on  a  throne.     In  the  "Invariable  Centre"  it  is  said : 

"It  is  only  the  man  supremely  holy,  who  by  the  faculty  <>f 
knowing  thoroughly  and  comprehending  perfectly  the  primi- 
tive laws  of  living  beings,  is  worthy  of  possessing  supreme 
authority  and  commanding  men,  who  by  possessing  a  soul 
grand,  firm,  constant  and  imperturbable  is  capable  of  making 
justice  and  equity  reign — who  by  his  faculty  of  being  always 
honest,  simple,  upright,  grave  and  just,  is  capable  of  attract- 
ing respect  and  veneration — who  by  his  faculty  of  being 
clothed  with  the  ornaments  of  the  mind  and  talents  procured 
by  assiduous  study  and  by  the  enlightenment  that  is  given  by 
an  exact  investigation  of  the  most  hidden  things  and  the  most 
subtle  principles,  is  capable  of  discerning,  whh.  accuracy  the 
true  from  the  false  and  good  from  evil." 

Mencius,  who  stands  second  only  to  Confucius  in  the  esti- 
mation of  the  learned  Chinese,  said, 

"When  the  prince  is  guilty  of  great  errors  the  minister 
should  reprove  him:  if  after  doing  so  again  and  again  he 
does  not  listen,  he  ought  to  dethrone  him  and  put  another  in 
his  place." 

In  the  Ta-hio  or  Grand  Study  the  leading  princii)les  of 
government  are  thus  stated  by  Confucius, 

"The  ancient  princes  who  desired  to  develop  in  their  states 
the  luminous  principle  of  reason  that  we  have  received  from 
Heaven,  endeavored  first  to  govern  well  their  kingdoms ;  those 
who  desired  to  govern  well  their  kingdoms,  endeavored  first 
to  keep  good  order  in  their  families ;  those  who  desired  to 
keep  good  order  in  their  families  endeavored  first  to  correct 


CHINA  223 

themselves,  those  who  desired  to  correct  themselves  endeav- 
ored first  to  give  uprightness  to  their  souls,  those  who  desired 
to  give  uprightness  to  their  souls  endeavored  first  to  render 
their  intentions  pure  and  sincere,  those  who  desired  to  render 
their  intentions  pure  and  sincere  endeavored  to  perfect  as  much 
as  possible  their  moral  knowledge  and  examine  thoroughly 
their  principles  of  action." 

"All  men  the  most  elevated  in  rank  as  well  as  the  most 
humble  and  obscure  are  equally  bound  to  perform  their  duty. 
The  correction  and  amelioration  of  one's  self,  or  self-im- 
provement is  the  basis  of  all  progress,  and  of  all  moral  de- 
velopment." Where  is  there  anything  better  than  this  in  any 
language?    The  Grand  Study  concludes, 

"If  those  who  govern  states  only  think  of  amassing  riches 
for  their  personal  use,  they  will  infallibly  attract  toward  them 
depraved  men.  These  depraved  men  will  make  the  sovereign 
believe  that  they  are  good  and  virtuous,  and  these  depraved 
men  will  govern  the  kingdom.  But  the, administration  of  the 
unworthy  ministers  call  down  the  chastisement  of  Heaven 
and  excite  the  vengeance  of  the  people.  When  matters  have 
reached  this  point  what  ministers,  were  they  ever  so  good 
and  virtuous,  could  avert  misfortune?  Therefore  those  who 
govern  kingdoms  ought  never  to  make  their  private  fortune 
out  of  the  public  revenues,  but  their  only  riches  should  be 
justice  and  equity." 

As  the  teachings  of  Christ  have  failed  to  make  all  of  his 
professed  followers  in  the  west  live  according  to  the  golden 
rule,  so  also  the  teachings  of  Confucius,  studied  in  every 
school  in  the  empire,  and  a  profound  knowledge  of  which  is 
a  prerequisite  to  appointment  to  office,  have  yet  failed  to 
make  ideal  rulers  of  men  corrupt  by  nature,  yet  that  his 
doctrines  have  wielded  a  powerful  influence  for  good  cannot 
be  doubted.  The  recognition  of  the  classical  books  as  author- 
ity on  moral  and  political  questions  operated  as  a  limitation 
on  the  despotic  powers  of  the  emperor  in  much  the  same 
way  that  the  unwritten  British  constitution  limits  the  power 
of  the  king,  lords  and  commons.  The  vast  and  complicated 
machinery  of  a  government,  ruling  so  many  millions  of  j)eo- 


224  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

pie,  also  necessitated  system  and  order,  which  could  not  be 
maintained  under  a  government  responding  solely  to  the 
arbitrary  will  of  a  despot.  The  checks  and  balances  of  the 
system,  though  designed  mainly  to  restrain  subordinate  offi- 
cers within  the  legitimate  bounds  of  their  authority,  operated 
also  to  limit  the  powers  of  the  emperor,  in  whom  theoretically 
all  power  was  vested. 

Under  the  Manchu  dynasty  the  succession  to  the  throne 
was  hereditary  in  the  male  line.  The  particular  person  was 
designated  by  the  sovereign,  but  kept  concealed  until  after  his 
death.  The  person  designated  ceased  to  be  known  by  his 
personal  name  from  the  time  of  his  accession  to  the  throne 
and  was  given  a  new  name  which  is  rather  the  name  of  his 
reign  than  of  himself.  The  deceased  emperor  was  given  a 
posthumous  name  by  which  he  is  known  in  history.  When 
by  revolutions  a  new  dynasty  was  established,  it  received  a 
name  which  is  continued  till  a  new  family  accedes  to  power. 

The  imperial  clan  consisted  of  two  classes.  First  the 
Tsimg-shih,  lineal  descendants  of  Tien-Mings'  father,  Hien- 
tsu,  who  assumed  the  title  of  the  emperor  in  1616.  Second  the 
collateral  branches  including  the  children  of  his  uncles  and 
brothers  who  were  collectively  called  Gioro.  In  the  Tsung- 
shih  there  were  twelve  degrees  of  rank.  They  were  for  the 
most  part  shut  out  from  useful  employments  and  received 
small  allowancs.  The  titular  nobility  of  the  empire  were  not 
a  rich  and  powerful  body,  but  without  power,  land,  wealth, 
or  influence.  The  near  kinsmen  of  the  emperor  received 
lil)eral  allowances,  while  the  lowest  orders  were  given  mere 
pittances.  The  imperial  clan  governed  Manchuria  and  indi-- 
A-iduals  were  given  such  appointments  in  the  empire  as  the 
emperor  saw  fit.  Besides  these  there  were  five  ancient  orders 
of  nobility,  the  titles  of  which  cannot  be  accurately  trans- 
lated.    The  descendants  of  Confucius  received  especial  honor. 

The  government  of  the  Imperial  court  was  under  the  gen- 
eral supervision  of  a  board  styled  the  Nui-zvu-fu  composed  of 
a  president  and  six  assessors  under  whom  were  seven  subordi- 
nate departments.  These  officers  attended  the  emperor  and 
empress  at  sacrifice  and  oversaw  the  households  of  the  em- 


CHINA  225 

peror's  sons,  as  well  as  directed  the  care  and  supplies  of  the 
palace  and  imperial  guard.  The  seven  departments  had  duties 
distributed  as  follows :  to  one  the  supply  of  food  and  raiment, 
to  the  second,  regulation  of  the  emperor's  body  guard,  the 
third  regulated  domestic  etiquette  and  brought  the  inmates 
of  the  harem,  led  by  the  empress,  to  do  homage  to  the  em- 
peror, the  fourth  selected  ladies  to  fill  the  harem  and  collected 
the  revenue  from  crown  lands,  the  fifth-  attended  to  repairs 
of  the  palace  and  cleaning  of  the  city  streets  for  the  use  of 
the  royal  family,  the  sixth  had  charge  of  the  emperor's  herds 
and  flocks  and  the  seventh  was  a  court  for  the  punishment  of 
crimes  in  and  about  the  palace.  The  work  of  the  imperial 
household  was  performed  by  about  2,000  eunuchs.  There  was 
but  one  empress,  but  the  emperor  was  entitled  to  seven  legal 
concubines  and  actually  kept  as  many  illegal  ones  as  he  pleased. 
Every  third  year  he  looked  over  the  Manchu  daughters  and 
chose  such  as  he  liked  for  concubines.  They  were  restored 
to  liberty  at  twenty-five,  unless  they  had  borne  children  to 
the  emperor. 

The  empress  dowager  was  the  most  important  subject  in 
the  palace  and  was  paid  special  honor  by  the  emperor.  The 
government  of  the  empire  was  carried  on  through  the  instru- 
mentality of  a  very  complex  ofticial  system.  First  and  closest 
to  the  emperor  were  two  councils,  the  Nui-Koh  or  cabinet 
which  consists  of  four  principals  and  two  assistants,  half 
Manchus  and  half  Chinese.  Their  duties  were  to  "deliberate 
on  the  government  of  the  empire,  proclaim  abroad  the  im- 
perial pleasure,  regulate  the  canons  of  state,  together  with 
the  whole  administration  of  the  great  balance  of  power,  thus 
aiding  the  emperor  in  directing  the  affairs  of  state." 

Subordinate  to  these  were  six  grades  of  officers  numbering 
in  all  over  200,  more  than  half  Manchus.  Under  the  six  chan- 
cellors were  ten  assistants  and  some  of  these  were  constantly 
absent  in  the  provinces.  The  principal  business  of  this  cabi- 
net was  to  receive  imperial  edicts  and  rescripts,  present  mem- 
orials, lay  before  the  emperor  the  afifairs  of  the  empire, 
procure  his  instructions  thereon  and  forward  them  to  the 
proper  office  io  be  copied  and  promulgated.     The  papers  in 


226  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

matters  for  consideration  were  arranged  and  slips  of  sug- 
gested answers  were  attached  when  they  were  presented  to 
tile  emperor  for  his  decision.  Dayhght  in  the  morning  was 
the  hour  for  commencing  his  work.  Each  document  was  first 
read  by  one  of  the  Manchu  hioh-sc,  who  then  handed  it  to  a 
Chinese  Jiioh-s.':  who  passed  it  to  the  emperor.  By  a  stroke 
of  the  vermihon  j)encil  he  indicated  the  answer  to  be  made. 
Appointments  to  office,  removals,  degradations,  orders  relat- 
ing to  taxes,  the  army,  the  provinces,  etc.,  were  thus  rapidly 
made. 

The  members  of  this  cabinet  separately  also  had  t)ther 
duties  to  i:)erfurm  in  connection  with  bureaus  to  which  they 
were  attached  and  in  presiding  on  state  occasions.  They 
were  also  keepers  of  the  twenty-five  great  seals  of  the  gov- 
ernment, each  of  which  was  of  special  design  and  for  par- 
ticular uses.  Subordinate  officers  attached  to  the  cabinet 
translated  documents  into  the  various  languages  found  in  the 
empire. 

The  Kiun-ki-Chit,  council  of  state,  was  organized  about 
T730  and  was  for  a  time  the  most  influential  body  under  the 
emperor.  The  numbers  of  this  council,  usually  about  four, 
varied  at  the  pleasure  of  the  emperor  by  whom  they  were  se- 
lected. Its  duties  were  "to  write  imperial  edicts  and  decisions, 
and  determine  such  things  as  are  of  importance  to  the  army 
and  nation  in  order  to  aid  the  sovereign  in  regulating  the 
machinery  of  affairs."  They  assembled  in  the  palace  between 
five  and  six  in  the  morning.  The  emperor's  commands  were 
written  down  by  them  and,  if  public,  transmitted  to  the  inner 
council  to  be  jjromulgated,  but,  if  the  matter  required  secrecy 
or  haste,  a  dispatch  was  forthwith  made  up  and  sent  to  the 
Board  of  War  to  be  forwarded.  In  all  important  trials  or 
consultations,  this  council  was  called  in  and  acted  either  sepa- 
rately or  in  connection  with  the  appropriate  court.  Lists  of 
officers  entitled  to  promotion  were  kept  by  it  and  names  to 
fill  vacancies   furnished  the  emperor. 

The  duties  of  these  supreme  councils  were  general,  covered 
all  departments  of  the  government  and  served  to  connect  the 
head  of  the  emjjire  with  all  sul)()rdinate  bodies  at  the  cai)ital 


CHINTA  227 

and  in  the  provinces.  Under  such  a  system,  very  much  de- 
pended on  the  personal  character  of  the  emperor.  The  King 
Poo  commonly  called  the  Peking  Gazette  was  compiled  from 
the  papers  presented  before  the  General  Council.  Every 
morning  ample  extracts  from  the  papers  decided  upon  by  the 
emperor,  including  orders  and  rescripts,  were  placarded  on 
boards  in  a  court  of  the  palace.  Couriers  were  dispatched  to 
all  parts  of  the  country  with  copies  of  these  papers  for  local 
officials.  Certain  persons  were  also  permitted  to  print  these 
documents,  but  without  comment  or  change,  and  circulate 
them  to  their  customers.  This  was  the  Gazette  and  was  simply 
a  record  of  official  acts.  It  was  very  generally  read  by  edu- 
cated people  and  kept  them  informed  of  the  proceedings  of 
the  government.  In  the  provinces,  abridged  editions  were 
made  for  readers  not  able  to  take  the  complete  one. 

Under  these  two  principal  councils  were  the  Luh-Pu  or  sl.-c 
boards,  of  ancient  origin.  At  the  head  of  each  board  were 
two  presidents  and  four  vice-presidents  alternately  Manchus 
and  Chinese,  and  over  those  of  Revenue,  War  and  Punish- 
ments were  also  superintendents  who  were  frequently  mem- 
bers of  the  Cabinet.  Sometimes  the  president  of  one  board 
was  superintendent  of  another.  There  were  three  subordinate 
grades  of  officers  in  each  board  and  a  great  number  of  clerks 
for  details.  The  organization  of  the  departments  was  very 
complete  and  systematic. 

( 1 )  The  Li  Pu  or  Board  of  Civil  Office,  "has  the  govern- 
ment and  direction  of  all  the  various  officers  in  the  civil  ser- 
vice of  the  empire  and  thereby  it  assists  the  emperor  to  rule 
all  the  people"  and  their  duties  included  "whatever  appertains 
to  the  plans  of  selecting  rank  and  gradation,  to  the  rules  de- 
termining degradation  and  promotion,  to  the  ordinances  grant- 
ing investures  and  rewards,  and  the  laws  for  fixing  schedules 
and  furloughs  that  the  civil  service  may  be  supplied."  Civil- 
ians were  presented  to  the  emperor  and  all  civil  and  literary 
offices  were  (listril)uted  l)y  it,  but  the  cabinet  and  General 
Council  had  ad\isory  oversight  of  the  high  appointments. 
The  ])oar(l  was  (li\i(led  into  four  l)ureaus.  Tiie  first  attended 
to  distinctions,  ])roniotions  and  exchange  of  olfices.     The  sec- 


228  EVOLUTION  OF  GOVERNMENTS   AND  LAWS 

ond  investigated  the  merits  and  demerits  of  oflicers  and  their 
worthiness  to  be  advanced  or  degraded  and  prescribed  fur- 
loughs. The  third  regulated  retirements  from  office  for 
mourning  or  filial  duties,  and  supervised  the  registration  of 
official  names.  The  fourth  regulated  the  distribution  of  titles, 
patents  and  posthumous  honors.  Posthumous  hcjnors  were 
highly  regarded  by  the  Chinese  and  theirs  was  the  only  gov- 
ernment that  ennobled  dead  ancestors  for  the  merits  of  their 
descendants.  While  nominal  titles  for  the  living  might  be 
bought,  the  dead  recei\ed  honor  only  on  the  basis  of  their 
own  merits  or  those  of  their  offspring. 

(2)  The  I  In  Pii  or  Board  of  Revenue,  "directs  the  terri- 
torial government  of  the  empire  and  keeps  the  lists  of  popu- 
lation in  order  to  aid  the  emperor  in  nourishing  all  the  people; 
whatever  appertains  to  the  regulations  for  levying  and  col- 
lecting duties  and  taxes,  to  the  plans  for  distributing  salaries 
and  allowances,  to  the  rates  for  receipts  and  disbursements 
at  the  granaries  and  treasuries  and  to  the  rights  for  trans- 
porting by  land  and  water,  are  reported  to  this  board,  that 
sufficient  supplies  for  the  country  may  be  provided."  It  also 
obtains  the  measurement  of  all  lands  in  the  empire,  and  ap- 
portions taxes  and  conscriptions  according  to  population,  etc. 
One  minor  office  of  this  board  prepared  lists  of  all  Manchu 
girls  fit  for  selection  as  inmates  of  the  imperial  harem.  There 
were  fourteen  subordinate  departments  to  attend  to  the  re- 
ceipt of  the  revenue  from  each  of  the  provinces,  each  of  which 
corresponded  with  the  treasury  department  in  its  respective 
province.  Some  of  the  revenue  was  paid  in  money,  some  in 
grain  and  merchandise  and  this  recjuired  a  vast  force  to 
handle  it.  This  board  was  also  a  court  of  appeals  on  certain 
cases  respecting  property  and  superintended  the  mint  in  each 
province. 

(3)  The  Board  of  Rites,  "examines  and  directs  con- 
cerning the  performance  of  the  five  kinds  of  ritual  observ- 
ances and  makes  proclamations  thereof  to  the  whole  empire, 
thus  aiding  the  eipperor  in  guiding  all  people.  Whatever 
appertains  to  the  ordinances  for  regulating  precedence  and 
literary  distinctions,  to  the  canons  for  maintaining  religious 


CHINA  229 

honor  and  fidelity,  to  the  orders  respecting  intercourse  and 
tribute  and  to  the  forms  of  giving  banquets  and  granting 
bounties,  are  reported  to  this  board  in  order  to  promote 
national  education."  The  five  classes  of  rites  were  defined  to 
be,  those  of  a  propitious  and  those  of  a  felicitous  nature,  mil- 
itary and  hospitable  rites  and  those  of  an  infilicitous  nature. 
A  subordinate  department  of  this  bureau  regulated  the  eti- 
quette to  be  observed  at  court  on  all  occasions  and  in  the  per- 
formance of  official  duties,  also  styles  of  dress,  caps,  etc.,  the 
figure,  size,  color  and  nature  of  the  fabrics  and  ornaments 
worn,  carriages  and  accoutrements  and  number  of  followers 
and  insignia  of  rank  of  those  taking  part  in  public  affairs. 
It  also  regulated  the  ceremonial  of  personal  intercourse  be- 
tween persons  of  the  various  ranks,  minutely  defining  the 
number  of  bows  and  degree  of  attention  which  each  should 
pay  to  the  other  when  meeting  officially.  It  also  directed  the 
form  of  official  correspondence  and  regulated  the  literary  ex- 
aminations, number  of  graduates,  distinction  of  classes,  forms 
of  selection  and  privilege  of  successful  candidates  and  the 
establishment  of  government  schools.  Another  office  super- 
intended the  religious  rites  to  be  observed.  A  third  called 
"host  and  guest"  office  looked  after  tribute  and  tribute  bearers 
and  attended  to  foreign  embassies,  supplied  provisions  and 
interpreters  and  regulated  the  mode  of  intercourse  with  for- 
eign states.  The  fourth  supplied  the  food  for  banquets.  The 
details  of  the  duties  of  this  Board  filled  fourteen  volumes  of 
the  Statutes.  The  ancient  Book  of  Rites  is  the  foundation  of 
ceremonies  and  the  standard  to  be  followed.  Confucius  said 
"Truly  nothing  is  without  its  ceremonies"  and  careful  ob- 
servance of  the  rites  is  regarded  by  the  Chinese  as  the  certain 
test  of  refinement  and  gentility.  Connected  with  this  board 
was  a  Board  of  Music,  whose  duties  were  to  study  the  princi- 
ples of  harmony  and  melody,  to  compose  musical  pieces  and 
form  musical  instruments  and  suit  them  to  the  various  occas- 
ions where  they  were  required.  Official  music,  however,  was 
not  highly  regarded  by  foreigners. 

(4)   The  Pill}::  Pu  or  i'.oard  of  War  "has  the  duty  of  aid- 
ing the  sovereign  to  protect  the  people  by  the  direction  of  all 


230  EVO'LL'TION  OF  GOVERNMENTS  AND  LAWS 

military  affairs  in  the  iiictr<>i)i)lis  and  provinces  and  to  regu- 
late the  hinge  of  the  state  upon  the  reports  received  from  the 
various  departments  regarding  deprivation  of,  or  ai)pointment 
to  Office,  succession  to,  or  creation  of  hereditary  military 
rank :  postal  or  courier  arrangements,  examination  and  se- 
lection of  the  deserving  and  accuracy  of  returns."  The  navy 
was  also  under  this  Board.  The  management  of  the  post 
was  under  a  special  department  and  dispatches  were  trans- 
mitted Ijy  an  efficient  system.  The  l)oard  of  war  discharged 
its  duties  through  four  bureaus.  It  had  no  control  over  the 
household  or  city  troops,  nor  of  the  Bannermen  distributed 
throughout  the  empire. 

(5)  The  Hing  Pu  or  Board  of  Punishments,  "has  the  gov- 
ernment and  direction  of  punishments  throughout  the  empire 
for  the  purpose  of  aiding  the  sovereign  in  correcting  all 
people.  Whatever  appertains  to  measures  of  applying  the 
laws  with  leniency  or  severity,  to  the  task  of  hearing  evidence 
and  giving  decisions,  to  the  right  of  granting  pardons,  re- 
prieves or  otherwise  and  to  the  rate  of  fines  and  interest  are 
all  reported  to  this  Board,  to  aid  in  giving  dignity  to  national 
manners."  This  Board  had  both  civil  and  criminal  jurisdic- 
tion. Its  officers  met  with  those  of  the  Censorate  and  Tali  Sa 
and  the  three  formed  the  San  Foh  S::;,  or  Three  Law  Cham- 
bers, which  decided  on  capital  cases  brought  before  them.  In 
the  autumn,  these  three  united  with  members  from  six  other 
courts,  forming  collectively  a  Court  of  Errors  to  review  the 
decisions  of  provincial  judges  before  reporting  them  to  the 
emperor.  They  were  required  to  conform  their  decisions  to 
the  laws  and  were  not  vested  with  any  arbitrary  powers.  Sub- 
ordinates of  this  Board  recorded  the  emperor's  decisions  on 
appeals  from  the  provinces  at  the  autumnal  sitting,  when  the 
entire  list  was  presented  for  the  emperor's  final  decision,  and 
saw  that  these  sentences  were  transmitted  to  the  provincial 
judges.  Another  office  superintended  the  publication  of  the 
code,  with  all  the  changes  and  additions.  A  third  oversaw 
jails  and  jailers.  A  fourth  received  fines  taken  in  commu- 
tation of  punishment,  and  a  fifth  registered  receipts  and 
expenditures. 


CHINA  231 

(6)  The  Kung  Pit  or  Board  of  Works,  "has  the  govern- 
ment and  direction  of  the  pnbHc  works  throughout  the  em- 
pire, together  with  the  current  expenses  of  the  same,  for  the 
purpose  of  aiding  the  emperor  to  keep  all  the  people  in  a 
state  of  repose.  Whatever  appertains  to  plans  for  buildings 
of  wood  or  earth,  to  the  forms  of  useful  instruments,  to  the 
laws  for  stopping  up  or  opening  channels,  and  to  the  ordi- 
nances for  constructing  the  mausolea  and  temples,  are  re- 
ported to  this  Board  in  order  to  perfect  national  works." 
The  work  of  the  bureaus  in  this  department  presents  a  singu- 
lar combination  of  duties.  One  bureau  supervised  the  con- 
dition of  city  walls,  palaces,  temples,  altars  and  other  public 
structures,  sat  as  a  prize  office,  furnished  tents  for  the  em- 
peror's journeys,  supplied  timber  for  ships,  and  pottery  and 
glassware  for  the  court.  Another  attended  to  the  manufac- 
ture of  military  stores  and  utensils  used  by  the  army,  sorted 
the  pearls  from  the  fisheries,  regulated  weights  and  measures, 
furnished  death  warrants  to  governors  and  generals,  and 
had  charge  of  arsenals,  stores,  cam])  equipage  and  other  things 
appertaining  to  the  army.  A  third  had  charge  of  all  water 
ways  and  dikes,  repaired  and  dug  canals,  erected  bridges, 
oversaw  the  banks  of  rivers  by  deputies  stationed  along  their 
courses,  built  vessels  of  war,  collected  tolls,  mended  roads, 
dug  sewers  in  Peking  and  cleaned  out  its  gutters,  preserved 
ice,  made  bookcases  for  public  records  and  looked  after  the 
silks  collected  as  taxes.  The  fourth  attended  chiefly  to  the 
condition  of  the  imperial  mausolea,  the  erection  of  the  sepul- 
chers  and  tablets  of  meritorious  officers,  buried  at  public  ex- 
pense, and  the  adornment  of  temples  and  palaces,  and 
superintended  all  workmen  employed  by  the  Board.  The 
mint  was  under  the  direction  of  two  of  the  vice-presidents 
and  the  manufacture  of  gun  powder  was  intrusted  to  two 
ministers. 

The  Li  Fan  Yuen  commonly  called  the  Colonial  Office  had 
the  government  and  direction  of  the  external  foreigners, 
ordered  their  emoluments  and  honors,  appointed  their  visits 
to  court  and  regulated  their  punishments,  in  order  to  display 
the  majesty  and  goodness  of  the  state.     This  branch  of  gov- 


232  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

ernnient  superintended  all  the  tribes  of  Mongolia,  Cobdo,  Hi 
and  Koko-nor.  These  are  called  "external  foreigners,"  to 
distinguish  them  from  the  tribes  of  Sz-chuen  and  Formosa 
who  are  termed  "internal  foreigners."  There  are  also  the 
"internal  barbarians,  comprising  the  unsubdued  mountaineers 
of  Kweichan,  and  the  "external  barbarians"  including  the 
people  of  all  foreign  countries.  The  Colonial  Ofifice  regulated 
the  government  of  the  nomads  and  restricted  their  wander- 
ings. Its  officers  were  all  Manchus  and  Mongols.  Besides 
the  usual  secretaries  there  were  six  departments.  The  first 
two  had  jurisdiction  over  the  minor  tribes  of  Mongolia,  ap- 
pointed the  local  officers,  collected  taxes,  allotted  lands  to 
Chinese  settlers,  opened  roads,  paid  salaries,  arranged  mar- 
riage retinues,  visits  to  court,  presents  made  by  the  princes 
and  review  of  the  troops.  The  third  and  fourth  had  similar 
but  less  effectual  control  over  the  princes,  lamas  and  tribes 
of  outer  Mongolia.  The  fifth  department  directed  the  ac- 
tions, restrained  the  powers,  levied  the  taxes  and  ordered 
the  tributary  visits  of  the  Mohammedan  begs  in  the  Thian- 
shan.  Nan  Lu.  The  sixth  regulated  the  penal  discipline  of 
the  tributary  tribes.  Salaries  were  paid  the  Mongolian 
princes  according  to  an  established  scale.  A  tsin  wang  re- 
ceived $2,600  and  twenty-five  pieces  of  silk  per  year,  a  Kiim- 
zvang  $1,666  and  fifteen  pieces  of  silk  and  so  down  to  the 
lowest  in  rank  who  got  $133  and  four  pieces  of  silk.  The 
organization  of  these  nomadic  tribes  partakes  of  both  the 
feudal  and  tribal  system.  The  Chinese  policy  was  to  reduce 
the  power  of  the  chiefs  and  make  the  people  independent 
owners  and  cultivators  of  the  soil. 

The  Tti'-chah  Yuen  or  Censorate,  "All  examining  Court" 
w'as  entrusted  with  the  "care  of  manners  and  customs,  the  in- 
vestigation of  all  public  offices  within  and  without  the  capital, 
the  discrimination  between  the  good  and  bad  performance  of 
their  business,  and  between  the  depravity  and  uprightness  of 
the  officers  employed  in  them ;  taking  the  lead  of  other  cen- 
sors and  uttering  each  his  sentiments  and  reproofs,  in  order 
to  cause  officers  to  be  diligent  in  attention  to  their  daily  duties 
and  to  render  the  government  of  the  empire  stable." 


CHINA  233 

The  Censorate  when  joined  with  the  Board  of  Punish- 
ments, and  Court  of  Appeals,  formed  a  high  court  for  the 
revision  of  criminal  cases  and  appeals  from  the  provinces ; 
and  in  connection  with  the  Six  Boards  and  the  court  of 
Representation  and  Appeal,  made  one  of  the  Kin  King  or 
"Nine  Courts"  which  deliberated  on  important  affairs  of 
state.  The  officers  were  two  censors  and  four  deputy  cen- 
sors, besides  whom  the  governors,  lieutenant  governors  and 
governors  of  rivers  and  inland  navigation  were  ex-officio 
deputy  censors,  A  class  of  censors  was  placed  over  each  of 
the  Six  Boards  whose  duties  were  to  supervise  all  their  acts, 
to  receive  all  public  documents  from  the  Cabinet  and,  after 
classifying  them,  transmit  them  to  the  several  courts  to  which 
they  belonged,  and  to  make  a  semi-monthly  examination  of 
the  papers  entered  on  the  archives  of  each  court.  All  crimi- 
nal cases  in  the  provinces  were  under  the  oversight  of  the 
censors  at  the  capital,  and  also  the  department  which  super- 
intended the  affairs  of  the  metropolis,  revised  its  municipal 
acts,  settled  the  quarrels,  and  repressed  the  crimes  of  its  in- 
habitants. Theoretically  the  Censors  had  the  right  and  rested 
under  the  duty  of  expressing  their  opinions  and  criticising 
all  official  dereliction  coming  under  their  observation,  from 
the  emperor  down,  but  to  do  so  required  exceptional  courage 
and  uprightness,  seldom  found  among  politicians  anywhere 
and  especially  rare  under  a  despotism.  Instances  of  righteous 
and  fearless  performance  of  this  duty  are  not  wanting  how- 
ever. Sung,  a  censor,  sent  in  a  memorial  remonstrating  with 
the  Emperor  Kiaking  upon  his  attachment  to  play  actors  and 
strong  drink,  which  degraded  him  in  the  eyes  of  the  people 
and  disabled  him  ivum  performing  his  duties.  The  Emperor 
highly  irritated  called  him  to  his  i)resence  and  on  his  con- 
fessing the  authorshij)  of  the  memorial  asked  him  what  pun- 
ishment he  deserved,  lie  answered  "(|nart(.'ring"  ;  being  told 
to  select  some  other  he  said  "Let  me  be  beheaded"  and  on  the 
third  command  chose  to  be  strangled,  lie  was  ordered  to 
retire  and  the  next  da\-  the  Emperor  appointed  him  governor 
of  Hi,  thus  removing  him  from  the  capital.  Another  censor, 
during  the  Tang  dynasty,   when  the  emperor  desired   to  in- 


234  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

spect  the  archives  of  the  historical  office  to  learn  what  had 
been  recorded  concerning  him,  under  the  excuse  that  he 
wanted  to  know  his  faults  so  that  he  might  correct  them, 
answered  "It  is  true  your  Majesty  has  committed  a  number 
of  errors,  and  it  has  been  the  painful  duty  of  our  employment 
to  take  notice  of  them ;  a  duty  which  further  obliges  us  to 
inform  posterity  of  the  conversation  which  your  Majesty  has 
this  day  very  improperly  held  with  us."  The  usual  mode  of 
advising  the  Emperor  was  by  a  written  remonstrance  or 
memorial.  Many  of  these  were  inserted  in  the  Peking  Gaz- 
ette for  public  information.  The  Tung-ching  Sz,  or  Court 
of  Transmission,  consisted  of  six  officers,  who  received  me- 
morials from  the  provincial  authorities  and  appeals  from  their 
judgments  by  the  people,  which  they  presented  to  the  Cabinet. 
Attached  to  this  court  was  an  office  for  attending  at  the 
palace  gate,  to  await  the  beating  of  a  drum,  which,  according 
to  ancient  custom,  was  placed  there  that  suitors  by  striking  it 
might  obtain  a  hearing.  This  was  also  the  channel  through 
w^hich  the  people  could  appeal  directly  to  the  Emperor,  and 
instances  occur  where  men  and  women  traveled  from  remote 
provinces  to  present  their  petitions  to  the  "one  man." 

The  Ta-li  S::  or  Court  of  Judicature  and  Revision  had  the 
duty  of  supervising  all  the  criminal  courts  in  the  empire  and 
formed  the  nearest  approach  to  a  Supreme  Court  of  any  in 
the  government.  When  the  crime  involved  life,  this  and  the 
preceding  united  with  the  censors  to  form  one  court,  and  if 
the  judges  w'ere  not  unanimous  in  their  decisions  they  must 
report  their  reasons  to  the  Emperor  to  decide  the  case.  The 
Hanlin  Yuen  or  Imperial  Academy  was  entrusted  "with  the 
duty  of  drawing  up  governmental  documents,  histories  and 
other  works;  its  chief  officers  take  the  lead  of  the  various 
classes,  and  excite  their  exertions  to  advance  in  learning  in 
order  to  prepare  them  for  employments  and  fit  them  for 
attending-  upon  the  sovereign."  Its  chief  officers  were  two 
presidents  or  senior  members  who  attended  on  the  Emperor, 
superintended  the  studies  of  graduates  and  furnished  semi- 
annual lists  of  persons  to  be  speakers  at  the  celestial  feasts, 
where  the  essays  of  the  Emperor  were  translated   from  or 


CHINA  235 

into  Manchu  and  read  before  him.  Subordinate  to  the  two 
seniors  were  four  grades  of  officers,  five  in  each  grade,  with 
an  unHmited  number  of  senior  graduates,  each  forming  a 
sort  of  college,  whose  duties  were  to  prepare  all  works  pub- 
lished under  governmental  sanction.  Subordinate  to  the  Han- 
lin  Yuen  was  an  office  consisting  of  twenty  t\vo  select  mem- 
bers, who  in  rotation  attended  on  the  Emperor  and  recorded 
his  words  and  actions.  There  was  also  an  additional  office 
for  the  preparation-  of  national  histories.  The  members  of 
the  Hanlin,  being  at  the  head  of  the  literary  graduates,  formed 
the  body  from  which  most  important  offices  were  filled. 

There  was  also  the  Kzvoh-tss  Kien  or  National  College  for 
teaching  graduates  of  the  lower  degrees  and  the  Kin  Tien 
or  Imperial  Astronomical  College,  whose  duties  were  defined 
"to  direct  the  ascertainment  of  times  and  the  movements  of 
the  heavenly  bodies  in  order  to  attain  conformity  with  the 
celestial  periods  and  to  regulate  the  notation  of  time  among 
men;  all  things  relating  to  divination  and  the  selection  of 
days  are  under  its  charge."  The  preparation  of  the  almanac, 
designating  the  lucky  and  unlucky  days  and  other  absurdities 
inserted  in  it,  were  under  their  charge. 

The  various  departments  of  the  general  government  were 
so  arranged  as  to  hold  a  check  on  each  other.  There  were 
two  presidents  over  each  board,  not  merely  to  assist,  but  to 
watch  each  other  and  oversee  the  vice-presidents.  The  presi- 
dent of  one  board  was  sometimes  the  vice-president  of  another 
and  by  means  of  the  censors  brought  under  the  cognizance  of 
several  officers,  whose  mutual  jealousies  and  ambitions  placed 
some  check  on  each  other  and  afi:orded  some  guarantee  of 
fidelity. 

Having  given  thus  a  general  view  of  the  organization  of 
the  government  at  the  capital  we  proceed  to  a  consideration 
of  the  government  of  the  provinces.  The  highest  officers  in 
the  i)rovinces  were  the  tsung-tuh,  viceroys,  and  the  futai  or 
fuyuen,  governors.  The  tsung-tiiJi  ruled  over  two  provinces 
or  else  filled  two  high  offices  in  one,  while  the  futai  was  over 
one  ])rovince,  either  in(k'pen(lent  or  subordinate  to  a  tsiing- 
tuJi.     The  \iceroy  stood  as  the  representati\e  of  the  l'',ni])eror 


236  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  the  territory.  The  fiitai  filled  a  similar  cai)acity  but  inferior 
to  the  tsiing-tuli  when  there  was  one.  The  departments  of  the 
civil  government  were  five  zn::.,  administration,  literary,  gabel, 
commissariat,  and  excise,  the  first  being  also  divided  into  the 
territorial  and  financial  and  the  judicial  branches.  At  the 
head  of  the  first'  branch  was  the  pii-ching  sz,  usually  called  the 
treasurer,  over  the  second  the  ngan-chah  ss  or  criminal  judge, 
presided.  These  two  officers  acted  together  in  important 
business  and  the  trial  of  important  cases.  The  literary  de- 
partment was  under  the  direction  of  an  officer,  selected  by  the 
Imperial  Academy  called  a  hioh-ching.  The  gabel  and  com- 
missariat were  usually  supervised  by  officers  called  tao  or 
fao-tai,  sometimes  termed  intendants  of  circuit,  who  had 
other  functions  also.  The  excise  was  under  Kientuh  or  su- 
perintendents. The  collection  of  the  revenue  being  difficult, 
was  mainly  entrusted  to  local  magistrates.  The  military  gov- 
ernment of  a  province  included  both  sea  and  land  forces.  It 
was  under  a  titiih  or  commander-in-chief  of  which  rank  there 
were  sixteen.  In  five  provinces  the  futai  was  commander-in- 
chief  and  in  Kan-suh  there  were  two.  Above  the  titiih,  in 
point  of  rank  but  not  of  power,  were  garrisons  of  Manchu 
Bannermen  under  a  tsiang-kiiin  or  general,  appointed  and  di- 
rected by  the  captains  general  in  Peking.  The  three  officers 
tsungtuJi,  futai  and  tsiang  kuin,  if  there  were  one,  formed  a 
supreme  council  and  united  in  deliberating  on  a  measure, 
calling  in  the  subordinate  in  whose  department  it  belonged. 
In  these  courts  civilians  took  precedence  of  military  officers. 
The  authority  of  the  viceroy  extended  to  life  and  death,  to 
making  temporary  appointments  to  fill  vacant  offices  in  the 
province,  to  ordering  troops  to  any  part  of  it  and  taking  such 
measures  as  were  necessary  for  the  security  and  peace  of  the 
province  under  him.  The  futai  also  had  power  of  life  and 
death  and  jurisdiction  of  appeals  in  criminal  cases  and  over- 
saw the  conduct  of  civilians  under  him. 

Next  in  rank  to  the  pu-ching  sc,  treasurer,  and  ngan-chah 
sc,  criminal  judge,  who  always  resided  at  the  provincial  capi- 
tal, were  the  intendants  of  circuit  who  were  located  in  the 
circuits  consisting  of  two  or  three  prefectures  united  for  this 


CHINA  237 

purpose.  They  were  deputies  of  the  two  highest  functionaries, 
whom  they  were  appointed  to  assist  and  relieve  in  the  dis- 
charge of  their  duties.  Some  were  appointed  to  supervise 
the  proceedings  of  the  prefects  and  district  magistrates,  others 
stationed  at  important  posts  to  protect  them,  and  those  con- 
nected with  foreign  trade  at  open  ports  had  no  territorial 
jurisdiction.  Below  these  were  the  prefects  or  chief  magis- 
trates of  departments  called  chifu,  chichau,  and  ting  tungchi 
according  as  they  were  placed  over  fu,  chau  or  ting  depart- 
ments. These  officers  received  their  orders  through  the 
intendants,  were  responsible  for  their  full  execution  and  ex- 
pected to  know  all  that  took  place  in  their  jurisdictions. 

Departments  were  divided  into  ting,  chau  and  hien  having 
each  their  separate  officers  who  reported  to  the  head  of  the 
department  over  them.  They  were  called  ting  chi,  chi-chau 
and  chi-hien. 

The  parts  of  districts  called  s£  were  placed  under  the  con- 
trol of  sinn-kien,  circuit  restrainers  or  hundreders  who  formed 
the  last  in  the  regular  series  of  descending  rank.  The  pre- 
fects sometimes  had  deputies  directly  under  them,  as  the 
governor  had  his  intendants,  when  the  importance  of  their 
departments  required  it.  Besides  these  there  were  many  other 
deputies  and  assistants  charged  with  particular  duties  in  the 
collection  of  taxes,  oversight  of  the  police,  care  of  water  ways, 
etc.  Besides  the  officers  above  mentioned  there  were  a  great 
number  of  clerks,  registrars  and  secretaries  connected  with 
every  officer  of  high  rank  and  a  multitude  of  petty  subordi- 
nates, with  some  duties  to  perform,  but  largely  kept  to  em- 
phasize the  importance  of  their  superiors.  All  above  the  chi- 
hien  were  allowed  private  secretaries.  The  ngan-chah-ss  had 
jailers  under  their  control,  as  had  also  the  more  important 
prefects. 

The  hioh-ching  or  literary  chancellor,  in  rank  but  \\o{  in 
power,  stood  next  the  governor.  Under  him  were  head  teach- 
ers of  different  degrees  of  authority,  residing  in  the  chief 
towns  of  the  departments  and  districts.  Tliese  had  some 
degree  of  supervision  over  the  studies  of  students  and  the 
colleges   in   the  chief   towns.      The  chancellor   had   exclusive 


238  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

authority  to  confer  the  lower  hterary  degrees,  and  he  made 
an  annual  circuit  of  the  province  for  that  purpose,  holding 
examinations  in  the  chief  towns  of  each  department  to  which 
all  students  residing  within  its  limits  could  come. 

The  gabel  or  salt  department  was  under  the  control  of  a 
special  officer  called  a  "commissioner  for  the  transport  of 
salt."  Above  these  commissioners  w^ere  eight  directofs  of  the 
salt  monopoly,  stationed  at  the  depots  in  Chi-li  and  Shang- 
tung,  who  also  performed  other  duties.  The  revenue  de- 
partment was  unusually  large,  owing  to  the  collection  of  so 
much  in  produce  and  merchandise.  The  transportation  of 
grain  along  the  Yangtsz  River  was  under  the  control  of  a 
tsung  Uih,  who  oversaw  the  disposal  and  directed  the  collec- 
tion of  it  in  eight  of  the  provinces  adjacent  to  the  river,  in 
each  of  twelve  provinces  there  was  a  liang-chu  tao  or  commis- 
sioner to  collect  grain  and  in  the  other  six  the  duty  was 
performed  by  the  pu-ching  sz.  The  supervision  of  the  subordi- 
nates of  this  department  rested  with  the  prefects  and  district 
magistrates.  The  number  of  provincial  officers  of  the  differ- 
ent grades  above  referred  to  were  given  as  follows : 

8  Governors   General   or   viceroys,    six   governing  two 
provinces  each. 

15  Governors. 

19  Commissioners  of  Finance. 

18  Commissioners  of  Justice. 

4  Directors  of  Salt  Gabel. 

9  Collectors. 

13  Commissioners  of  Grain. 

64  Intendants  of  Circuit. 

182  Prefects. 

68  Prefects  of  Inferior  Departments. 

18  Independent  Subprefects. 

180  Dependent  Subprefects. 

139  Deputy  Subprefects. 

141  District  Magistrates  of  the  Fifth  Class. 

1232  District  Magistrates  of  the  Seventh  Class. ^ 
'  The  Middle  Kingdom. 


CH'INA  239 

The  military  section  of  the  provincial  government  was 
under  a  ti-tith  or  general  who  resided  at  a  central  post  and  in 
conjunction  with  the  viceroy  and  governor  directed  the  move- 
ment of  troops.  The  native  troops  in  each  province  were  dis- 
tinct from  the  Manchu  and  were  divided  somewhat  after  the 
plan  of  the  ancient  Roman  legion,  cohort,  maniple  and  cen- 
tury, over  each  of  which  were  appropriate  officers.  The  gov- 
ernor, major  general,  and  Banner  commandant  had  commands 
independent  of  each  other.  Naval  officers  had  the  same 
names  as  those  in  the  army  and  changes  and  promotions  were 
made  from  one  arm  of  the  service  to  the  other.  The  general 
officers  had  power  to  send  special  messengers  invested  with 
full  powers  to  every  part  of  their  jurisdiction. 

The  Emperor  sent  commissioners,  called  Kiu-chai,  to  all 
parts  of  the  empire,  ostensibly  on  particular  business,  but  re- 
quired to  take  general  observations  of  what  was  going  on. 
In  considering  the  extent  of  the  jurisdiction  and  vast  power 
reposed  in  these  various  officers,  it  must  be  borne  in  mind  that 
each  viceroy  had  under  him  more  people  than  are  to  be  found 
in  any  but  the  greatest  countries  of  Europe,  that  he  stood  as 
the  representative  of  the  Emperor  and  of  the  supreme  legis- 
lative, executive,  and  judicial  power,  and  that  he  constantly 
exercised,  in  person  and  through  his  subordinates,  more  or 
less  of  all  these  functions.  The  Emperor,  with  his  great  army 
of  assistants  at  Peking,  watched  over  and  directed  not  only 
the  affairs  of  the  eighteen  home  provinces,  but  also  the  outer 
dependencies.  It  is  exceedingly  difficult  for  one,  accustomed 
only  to  study  western  governments  and  laws,  to  gain  a  clear 
conception  of  this  vast  governmental  system,  which  owed 
none  of  its  principles,  forms  or  policies  to  the  suggestion  of 
other  nations.  The  government  like  the  peo[)lc  was  indigenous 
and  to  be  understood  must  be  viewed  in  C(jnnection  with  its 
environments. 

No  oflicer  was  allowed  to  marry  in  the  jurisdiction  under 
him  nor  to  own  land  in  it,  nor  have  a  near  relative  holding 
office  uniliT  him;  and  one  was  seldom  continued  in  the  same 
station  for  more  than  three  years.  Manchus  and  Chinese  were 
mingled  together  and  were  expected  to  watch  and  mutually 


240  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

check  each  other.  Members  of  the  imperial  clan  were  required 
to  attend  the  meetings  of  the  boards  at  the  capital  and  ob- 
serve and  report  what  they  deemed  amiss  to  the  Emperor.  A 
triennial  catalogue  of  merits  and  demerits  of  all  officials  in 
the  empire  was  made  out  by  the  Board  of  Civil  Office  and 
submitted  to  the  Emperor.  This  catalogue  was  made  up  from 
reports,  made  by  all  provincial  officers  on  the  conduct  of  those 
under  them,  forwarded  by  the  governors.  The  points  were 
arranged  under  six  heads,  diligence,  efficiency,  superficiality, 
talents,  superannuated  and  deceased.  On  this  basis  the  offi- 
cers were  advanced  or  degraded.  Officers  were  required  to 
accuse  themselves,  when  guilty  of  crime  committed  by  either 
themselves  or  their  subordinates,  and  request  punishment. 
The  names  and  standing  of  all  officers  were  publislied  quar- 
terlv  by  permission  of  the  government  in  the  Red  Book,  in 
four  twelve-mo.  volumes,  and  officers  of  the  army  and  Banner- 
men  in  two  others.  This  publication  was  begun  about  1580 
and  gives  the  name,  native  province,  race,  title  and  salary  of 
the  officers.  The  record  of  most  officials  is  one  of  ups  and 
downs,  very  few  being  able  to  steadily  advance.  Except  the 
preferences  given  to  the  imperial  clan,  Chinese  officials  came 
up  from  the  great  multitude.  No  matter  how  humble  his 
birth,  any  subject  was  eligible  to  the  highest  office  under  the 
eni[)eror.  Theoretically  education  was  the  test  of  qualifica- 
tion. Practically  the  favor  of  the  ai)])ointing  power  was  of 
first  importance  and  personal  influence  often  outweighed  merit. 
The  orders  of  the  court  were  usually  transmitted  in  manu- 
script. General  proclamations  were  printed  on  yellow  paper 
in  the  Manchu  and  Chinese  languages  with  a  border  of 
dragons.  Orders  and  regulations  issued  by  governors  and 
other  princii)al  officers  to  the  people  of  the  provinces  were 
also  published.  Standing  laws  and  local  regulations  were 
often  carved  on  tablets  of  black  marble  and  placed  in  the 
streets  where  all  could  read  them.  Commands  of  the  gov- 
ernment were  usually  printed  in  large  characters  and  copies 
were  posted  at  the  doors  of  the  offices  and  in  public  places  in 
the  streets,  with  the  seal  of  the  officer  authenticating  them. 
Important  edicts  were  also  often  printed  in  pamphlet  form. 


CHINA  241 

Persons  eligible  to  office  were  divided  into  nine  literary  ranks, 
the  lowest  including  village  magistrates,  deputy  treasurers, 
jailers,  etc.  Policemen,  local  interpreters,  clerks  and  attend- 
ants were  not  regarded  as  of  any  rank  and  were  mostly  resi- 
dents of  the  locality  where  employed.  Titular  rank  was  sold 
by  the  government,  but  this  did  not  open  the  road  to  official 
position,  though  offices  were  purchased  corruptly  and  in- 
stances occurred  where  offices  were  sold  by  the  government. 
The  principal  advantage  of  the  honorary  title  was  that  it 
saved  the  possessor  from  the  bamboo,  where  others  would 
suffer. 

Besides  the  officials  holding  by  appointment  under  the  Em- 
peror, there  were  village  headmen,  chosen  by  the  people  them- 
selves, who  had  more  or  less  important  duties  to  perform 
according  to  circumstances.  They  decided  petty  disputes, 
supervised  local  police,  regulated  festivals,  markets  and 
streets,  collected  taxes,  etc.  They  were  under  surveillance 
of  their  supervisors  and  an  appeal  lay  from  the  headmen  to 
the  district  magistrate.  Meetings  of  the  headmen  of  many 
villages  to  consult  on  matters  of  mutual  interest  were  some- 
times held  and  they  held  something  of  a  check,  as  representa- 
tives of  the  people,  on  the  oppressions  and  extortions  of  the 
higher  officials  and  their  menial  dependents.  The  existence 
of  clans,  which  is  most  marked  in  the  southern  provinces,  is 
a  source  of  much  disorder  and  crime.  There  are  about  four 
hundred  clans  in  the  empire,  many  of  which  are  scattered 
throughout  different  parts,  thus  in  effect  greatly  multiplying 
the  number.  The  clans  are  most  active  and  turbulent  in  the 
southern  provinces,  especially  Kwang  tung  and  Fukien.  By 
uniting  to  shield  members  guilty  of  crime,  great  difficulties 
are  often  interposed  to  the  administration  of  justice.  False 
witnesses  and  sometimes  hired  substitutes,  confessing  crime 
to  shield  the  guilty,  are  produced  and  paid  by  the  clan.  In 
some  places  the  clan  becomes  little  more  than  a  nest  of  bandits 
and  even  develops  into  the  terrible  Kouan  Koucn  of  whom 
the  Abbe  Hue  says,  "To  give  and  receive  wounds  with  com- 
posure; to  kill  others  with  the  most  perfect  coolness  and  to 
have  no  fear   for  yourself,  this  is  the  sublime  ideal  of  the 


242  EVQLUTJON   OF  GOVERNMENTS  AND  LAWS 

Kouan  Koucii."  In  the  cities  the  huusehoklers  on  each  street 
are  required  to  unite  in  poHcing  the  street  and  maintaining 
order,  and  for  this  purpose  they  select  a  headman  who  has 
supervision.  The  citizens  also  form  voluntary  guilds  to  fur- 
ther mutual  interests,  each  having  its  assembly  hall,  where 
they  assemble  for  about  the  same  purposes  as  do  European 
guilds.  Popular  assemblies  are  sometimes  held  on  a  more 
comprehensive  scale  and  in  Canton  there  is  a  building,  called 
the  Free  Discussion  Hall,  where  political  matters  are  openly 
discussed  and  the  gatherings  often  wield  great  influence. 
Secret  societies,  some  of  them  ramifying  throughout  a  large 
part  of  the  empire,  are  numerous,  though  the  policy  of  the 
government  was  to  suppress  them.  City  charters  appear  to 
have  been  a  thing  unknown  and  the  people  of  cities  were 
subject  to  substantially  the  same  governmental  system  that 
prevailed  throughout  the  empire.  China  is  peculiarly  free 
from  class  distinctions.  There  is  no  hereditary  aristocracy 
corresponding  to  that  of  Europe,  the  clan  of  the  Emperor 
and  descendants  of  Confucius  alone  receiving  substantial 
recognition. 

Caste  in  the  sense  in  which  it  exists  in  India  is  unknown. 
There  are  prejudices  against  members  of  certain  aboriginal 
tribes  in  the  interior  and  l)oat  people  on  the  coast.  Aliens, 
slaves,  criminals,  executioners,  police  runners,  actors,  jug- 
glers, beggars,  vagrants  and  vile  persons,  were  not  eligible 
for  the  literary  examinations,  nor  their  descendants  until  for 
three  generations  they  had  followed  some  useful  employment. 
The  democratic  part  of  the  system  was  in  the  village  organi- 
zation, which  was  thoroughly  so.  All  citizens  were  electors 
and  eligible  to  office.  The  village  collectively  was  responsible 
for  the  taxes  and  the  headmen,  usually  the  elders,  were 
generally  of  high  character  and  worthy  of  the  confidence  re- 
posed in  them.  These  village  organizations  included  con- 
siderable numbers  of  people,  in  some  instances  several  thou- 
sands. In  the  election  of  headmen,  the  people  divided  by 
clans,  rather  than  parties  representing  different  principles, 
and  most  of  the  wrongs  attributed  to  these  local  governments 
are  chargeable  to  clan  enmity. 


CHINA  243 

Slavery  exists  in  China,  but  only  to  a  very  limited  degree 
as  to  males,  the  numbers  of  whom  are  so  few  as  to  be  hardly 
appreciable.  Women  are  sold,  but  usually  for  concubines. 
Polygamy  is  allowed,  but  not  much  practiced  except  by  the 
rich.  The  chief  fundamental  defect  in  the  organization  of 
Chinese  society  unquestionably  is  the  low  estimation  in  which 
women  are  held  and  their  oppression  by  the  males.  The  wife 
is  the  slave  of  her  husband,  with  whom  she  is  not  permitted  to 
eat,  or  attend  public  worship.  The  birth  of  a  son  is  followed 
by  great  rejoicing  but  the  birth  of  a  daughter  is  considered  a 
calamity.  The  girl  is  the  servant  of  her  brothers  as  well  as 
her  parents,  and  until  recent  times  in  obedience  to  the  merci- 
less demands  of  fashion,  was  required  at  an  early  age,  to 
endure  the  barbarous  process  of  foot  binding,  by  which  she 
was  rendered  a  cripple  for  life.  This  seems  to  have  been 
even  more  the  work  of  the  women  than  of  the  men,  the 
mothers  like  those  of  western  lands  prizing  above  all  things 
the  appearance  which  fashion  demanded.  The  respect  for 
parents  and  for  age,  so  strongly  inculcated  in  all  the  teachings, 
tends  in  some  measure  to  alleviate  the  condition  of  women  in 
the  closing  years  of  life.  The  fact,  however,  is  abundantly 
established  that  the  Chinese,  as  a  nation,  deny  absolutely  the 
equality  of  the  sexes  and  remain  blind  to  the  blighting  influ- 
ence on  society,  and  on  each  succeeding  generation,  which  the 
degradation  and  ill  treatment  of  mothers  have.  Though  Chi- 
nese philosophers  have  perceived  and  taught  the  value  of  home 
instruction  and  of  the  mother's  influence  on  her  offspring,  they 
have  utterly  failed  to  carry  the  lesson  to  its  logical  conclusion 
and  enjoin  such  care,  education  and  considerate  treatment  of 
the  mother  as  will  enable  her  to  properly  discharge  these 
duties.  Herein  lies  the  greatest  defect  in  the  social  system  of 
the  empire. 

A  general  survey  of  the  workings  of  the  Chinese  govern- 
ment will  show  that  it  drew  far  less  from  the  people  by  tax- 
ation than  any  other  great  government,  population  considered, 
and  the  number  of  officials  employed  was  very  nuich  less. 
The  com|)laints  of  the  people  were  not  so  much  agait;st  regu- 
lar taxati(jn  as  the  extortion  of  petty  officials  and  hangers  on 


244  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  the  courts.  It  was  the  corruption  and  extortions  of  offi- 
cials high  and  low  that  bore  heavily  on  those  who  found  need 
of  resorting  to  governmental  protection  or  were  called  on  to 
answer  for  their  doings. 

China  is  the  least  military  of  all  the  great  governments,  ex- 
cept the  United  States  of  America.  Its  standing  army  in- 
cludes less  than  one  million  men  of  whom  very  many  are  but 
nominal  soldiers.  This  is  less  than  one  out  of  four  hundred 
of  its  population.  Any  first  class  European  power,  Great 
Britain  excepted,  can  muster  a  larger  force  than  this  of 
trained  soldiers,  though  not  all  in  actual  service.  Chinese 
soldiers  are  generally  regarded  with  contempt  by  Europeans 
and  while,  as  individuals,  the  Chinese  frequently  exhibit  as 
much  physical  courage  as  Europeans,  their  character,  habits 
and  traditions  are  essentially  unmilitary. 

In  its  government  we  find  that  the  primary  structure  was 
democratic  in  character,  resembling  the  tribal  organizations 
of  primitive  people,  which  usually  accord  some  degree  of  dis- 
tinction and  respect  to  the  elders.  At  the  head  of  the  vast 
official  machine  was  the  Emperor,  theoretically  the  great 
patriarch  of  the  whole,  vested  with  full  power,  which  he  was 
expected  to  exercise  as  a  father,  according  to  established  prin- 
ciples and  customs  and  for  the  good  of  his  immense  family. 
The  theory  of  the  government  did  not  admit  of  anything  like 
a  clear  separation  of  it  into  legislative,  executive  and  judicial 
departments,  nevertheless  these  functions  were  in  practice 
separately  exercised  to  a  considerable  extent.  The  principles 
declared  in  the  classical  books  require  that  the  government  be 
rather  one  of  laws  than  of  the  arbitrary  will  of  men,  and  the 
Book  of  Rites  indicates  the  relations  of  the  various  grades  of 
officials  to  each  other  and  to  the  people.  However  arbitrarily 
they  may  have  exercised  their  powers  in  practice,  the  army 
of  officials  who  administered  the  government  had  no  com- 
mission to  rule  according  to  their  pleasure.  Their  powers 
and  duties  were  well  marked  out  and  a  well  devised  and  con- 
stant system  of  surveillance  and  espionage  to  keep  them  to 
their  duties  was  maintained. 

China  has  long  had  its  code  of  written  laws  termed  the 


CHINA  245 

penal  code,  though  it  relates  to  what  are  called  civil  cases  with 
us  as  well  as  to  criminal  ones.  An  extended  summary  of  this 
code  as  it  existed  a  century  ago,  before  western  influences  had 
been  sufficient  to  produce  any  material  effect  on  Chinese  senti- 
ments, will  be  found  in  the  Appendix. 

Steamboats,  railroads,  and  telegraphs  have  reduced  the  dis- 
tance between  China  and  the  west;  other  western  inventions 
and  scientific  teachings  have  introduced  new  ideas  into  the 
ancient  realm;  battleships  and  great  guns  have  demonstrated 
the  destructive  forces  of  the  "foreign  devils,"  and  China  can 
no  longer  be  a  world  to  itself.  The  new  learning  of  the  west 
has  been  acquired  by  many  Chinese  scholars,  and  books  and 
periodicals  of  all  kinds  have  disseminated  it  throughout  the 
empire.  Though  Chinese  statesmen  and  merchants  came  in 
contact  with  foreign  people  ever  since  the  opening  of  trade 
between  Europe  and  India  and  China  but  little  effect  on  the 
multitude  was  produced  until  very  recent  times.  Kwang-su, 
an  infant,  ascended  the  throne  in  January,  1875  with  the 
dowager  empresses  Tsz'e  Hsi  and  Tsz'e  An  as  guardians. 
Tsz'e  An  died  in  1881  and  from  that  time  till  1898  the  sover- 
eign power  was  wielded  by  Tsz'e  Hsi.  Kwang-su  then  as- 
sumed authority  for  a  brief  period  but  was  deposed  by  the 
dowager  who  resumed  authority.  The  war  with  Japan,  the 
acquisition  of  the  Philippine  Islands  by  the  United  States,  the 
construction  of  the  Siberian  railway  by  Russia,  the  boxer  up- 
rising in  1900  and  the  intervention  of  the  foreign  powers  and 
the  war  between  Japan  and  Russia,  combined  with  increasing 
knowledge  of  western  arts,  inventions  and  ideas  to  produce 
a  public  sentiment  among  the  educated  classes  in  favor  of 
sweeping  reforms  in  governmental  methods.  In  1905  an  Im- 
]jerial  Commission  to  study  the  administrative  systems  of 
other  countries  was  appointed  with  a  view  to  the  possible 
establishment  of  representative  government  in  China.  This 
Commission  visited  Japan,  America  and  Europe.  On  Sep- 
tember I,  1906  an  edict  for  the  future  establishment  of  a 
parliamentary  form  of  government  at  no  fixed  date  was 
promulgated.  August  27,  1908  a  decree  issued  in  the  name 
of  Kwang-su  announced  the  convocation  of  a  parliament  in 


246  EVOLUTTOX  OF  GOVERNMENTS  AN<D  LAWS 

the  ninth  year  from  that  date.  Reform  of  the  educational 
system  to  inchide  modern  sciences  as  well  as  the  Chinese 
classics  began  in  1902.  Kwang-su  died  in  November,  1908 
and  his  death  was  followed  by  that  of  the  dowager  empress 
on  the  fifteenth  of  that  month.  Pu-Vi,  the  infant  nephew  of 
Kwang-su,  succeeded  to  the  throne.  On  October  14,  1909, 
Provincial  Assemblies  elected  in  the  provinces  met.  In  Feb- 
ruary, 1 910  a  decree  approving  schemes  of  the  Commission 
for  constitutional  reforms  with  local  representative  govern- 
ments in  the  prefectures  and  departments  and  reforms  of  the 
judiciary  was  promulgated.  The  appointment  in  May  191 1 
of  an  Executive  Council  composed  of  eight  royal  princes; 
four  Manchus  and  only  five  Chinese,  and  the  assertion  by  the 
regent  that  "the  right  to  name  officials  belongs  to  the  Emperor 
alone"  and  the  manifestation  of  reactionary  tendencies  by  the 
court,  precipitated  a  revolution  which  resulted  in  the  abdica- 
tion of  the  little  Pu-Yi  and  the  dowager  Empress  on  Febru- 
ary 12,  1 91 2  and  the  establishment  of  the  Republic  of  China. 
While  the  change  from  the  theory  of  an  absolute  paternal 
despotism  to  a  republic  seems  so  very  great,  China  was  not 
wholly  unprepared  for  it.  The  indispensable  prerequisite  of 
a  written  language  read  and  comprehended  by  a  large  part 
of  the  people,  coupled  with  general  education  in  the  principles 
of  government  as  declared  in  the  classical  books  and  long 
familiarity  with  local  self-government  in  the  villages  and  com- 
munities, and  the  meetings  of  the  head  men  of  a  number  of 
villages  for  consultation  and  concerted  action  had  prepared 
the  people  in  some  measure  for  republican  institutions. 

Nothing  is  more  common  than  to  regard  with  contempt 
that  which  is  not  understood.  Europeans  and  Americans  gen- 
erally look  upon  Chinese  civilization  as  containing  nothing 
worthy  of  adoption  or  even  of  serious  consideration.  The 
Chinese  are  now  manifesting  a  willingness  to  learn  from  the 
western  barbarians,  whom  they  so  long  despised. 

The  prominent,  glaring  faults  of  the  Chinese  are  their 
treatment  of  women,  slavery,  polygamy,  binding  the  feet, 
torture  to  extort  confessions  of  crime,  and  cruel  punishments. 
These  are  so  repugnant  to  Europeans  that  it  is  often  assumed 


CHINA  247 

that  no  great  virtues  can  be  associated  with  conduct  so  vicious. 

Europe  viewed  from  the  standpoint  of  China,  exhibits  many 
comparatively  petty  states,  constantly  burdened  with  the  sup- 
port of  great  armies  and  often  warring  with  each  other,  speak- 
ing different  languages  as  do  the  inferior  tribes  within  the 
Chinese  empire.  They  are  shocked  at  the  disrespect  exhibited 
toward  parents  in  America,  even  more  than  in  Europe;  at 
the  want  of  respect  for  one  another  indicated  by  the  absence 
of  ceremonious  greetings,  at  the  absurd  fashions  in  clothing, 
the  absurd  burdens  of  woolens  and  linens  in  summer  worn  by 
the  men,  and  the  indecent  and  harmful  exposure  of  their  per- 
sons by  the  women  at  great  functions  in  winter;  at  the  multi- 
tudes of  idle  rich  and  idle  poor  found  everywhere;  at  the  in- 
justice and  bad  policy  of  laws  which  fix  the  fines  of  rich  and 
poor  at  the  same  sum  of  money ;  at  the  want  of  discrimination 
in  punishments  and  the  actual  exemption  of  the  nobility  in  Eu- 
rope and  the  very  rich  in  America  from  accountability  for  their 
conduct,  and  many  other  European  and  American  peculiarities. 

To  the  American  or  European  who  considers  the  Chinese 
Penal  Code,  probably  the  first  matter  that  will  challenge  his 
attention  is  the  want  of  a  civil  code.  Europeans  and  Ameri- 
cans from  the  earliest  historical  times  have  classified  their 
causes  in  court  as  civil  and  criminal,  and  this  division  is  re- 
garded as  natural  and  indispensable.  Is  it  really  either  natural 
or  indispensable?  The  fundamental  idea  of  the  Chinese  was 
that  the  Emperor  occupied  the  relation  of  a  father  to  all  the 
people;  that  the  duty  rested  on  him  to  restrain  all  his  multi- 
tude of  children  from  doing  wrong,  and  also  to  compel  them 
to  do  right.  How  should  this  l)e  done?  As  a  father  would 
enforce  obedience  and  right  conduct  by  his  children.  For 
petty  offences  and  omissions  of  duty  a  mild  whipping;  for 
those  more  serious  more  strokes.  When  whipping  appeared 
inadequate,  banishment,  and  for  the  most  heinous  crimes, 
death.  The  Chinese  deem  punishment  due  to  him  who  de- 
frauds his  neighbor  as  well  as  to  him  who  steals  from  him; 
to  him  who  unlawfully  detains  another's  property  as  well  as 
to  him  who  stealthily  takes  it.  To  fail  to  pay  a  debt  or  per- 
form a  contract  or  dutx'  is  a  nn'sdecd  lo  be  corroded  with  the 


248  EVOLUTION  OF  GOVERNMTINTS  ANO  LAWS 

bamboo.  Misdeeds  are  graded  and  classified  in  the  Penal 
Code  of  China  far  more  logically  and  naturally  than  in  Europe 
or  America.  The  turpitude  of  the  misdeed  depends  on  the 
value  of  the  property  of  another  which  has  been  unlawfully 
taken,  retained  or  misappropriated,  the  nature  of  the  injury 
to  the  person,  the  intent  of  the  wrongdoer,  and  the  relation- 
ship of  the  parties.  In  Europe  and  America  an  arbitrary  line 
is.  drawn  between  crimes  and  civil  wrongs.  Many  frauds  and 
misdeeds  of  the  greatest  magnitude  are  not  classed  as  crimes, 
and  some  really  meritorious  acts  are  punished.  Larceny  and 
embezzlement,  which,  in  the  nature  of  things  have  many 
grades  of  moral  turpitude,  are  ordinarily  divided  arbitrarily 
into  two  classes  based  on  value  or  kind  of  property.  The 
Chinese  make  a  much  more  logical  classitication  and  punish 
petty  pilfering  with  but  a  few  blows,  and  larceny  of  a  large 
sum  with  death.  To  steal  food  to  satisfy  hunger  is  but  a 
slight  fault,  to  deliberately  take  a  large  sum  of  money  or 
property  of  great  value  from  another  exhibits  moral  turpitude 
and  is  punished  accordingly.  It  is  regarded  as  a  much  more 
serious  ofTense  for  a  son  to  strike  his  father  or  mother  than 
a  stranger.  It  is  a  less  offense  for  a  member  of  a  family  to 
appropriate  a  part  of  the  property  of  another  member  of  it  to 
his  use  than  to  take  from  a  stranger.  In  dealing  with  prin- 
cipals and  accessories  in  crime,  the  one  who  plans  and  directs 
is  regarded  as  the  principal,  whether  he  actually  takes  part  in 
the  perpetration  of  the  offense  or  not.  This  also  is  more  logi- 
cal than  the  rules  of  the  common  law  of  England  and  the 
United  States. 

In  the  infliction  of  punishment  regard  is  had  to  the  ability 
of  the  culprit  to  endure  it.  Both  the  old  and  the  young  are 
treated  more  leniently  than  the  strong  mature  men.  Women 
are  allowed  special  consideration  in  this  particular  and  retain 
the  upper  garment  while  a  man  is  required  to  strip.  Where 
commutation  is  allowed  in  lieu  of  the  bamboo,  the  amount  of 
the  payment  depends  on  the  ability  of  the  culprit  to  pay,  and 
the  rich  and  powerful  must  pay  ten  times  as  much  as  the 
poor  and  humble.  When  it  is  considered  that  in  the  west  the 
rich  nearly  always  escape,  and  when  convicted  and  actually 


CHINA  249 

punished  are  treated  with  far  more  consideration  than  the 
poor,  the  superiority  of  the  Chinese  code  in  this  particular 
appears  very  marked. 

While  the  laws  with  reference  to  marriage  and  divorce  do 
not  commend  themselves  to  the  Western  mind,  in  one  par- 
ticular the  divorce  law  is  superior  to  ours.  It  recognizes  mis- 
conduct as  a  ground  for  a  divorce,  but  it  also  recognizes  good 
conduct  as  a  defence.  Clearly,  good  conduct  should  be 
weighed  ,as  well  as  bad.  Western  people  are  disposed  to 
ridicule  Chinese  regulations  with  reference  to  mourning,  yet 
these  accord  perfectly  with  the  central  idea  of  paternal  author- 
ity on  which  both  the  governmental  and  domestic  systems 
were  based.  Doubtless  the  profound  respect  for  parents  man- 
ifested by  the  Chinese  is  largely  due  to  the  law  relating  to 
mourning,  which  makes  the  loss  of  father  or  mother  a  calam- 
ity, not  merely  in  and  of  itself,  but  also  by  reason  of  the  legal 
consequences  which  follow.  In  the  West  the  heir  of  a  great 
estate  is  far  too  often  forgetful  of  his  loss  and  over  conscious 
of  his  gain. 

In  no  other  country  is  industry  and  thrift  so  general,  and 
nowhere  else  is  there  so  small  a  percentage  of  idlers  living 
on  the  industry  of  others.  This  also  is  due  in  some  measure 
at  least  to  the  policy  of  the  law.  Speculators  are  not  allowed 
to  hold  great  tracts  of  land  without  use.  The  owner  must 
make  his  land  productive  and  the  village  authorities  must  see 
that  he  does  so. 

Acts  of  Parliament  covering  limited  fields  and  the  recog- 
nized methods  of  carrying  on  public  affairs  constitute  the  so- 
called  British  constitution.  In  China  the  classical  books  de- 
fined the  relations  of  the  people  and  their  rulers,  and  the  offi- 
cial system  through  which  the  people  were  governed,  with  its 
explicit  rules  and  the  elaborate  penal  code,  constituted  their 
constitution.  It  is  true  that  they  had  not  the  theoretical  sepa- 
ration of  executive,  legislative  and  judicial  departments,  but 
on  the  other  hand  they  had  a  more  com])lete  system  of  chang- 
ing officials  from  place  to  ])lace  and  having  each  watch  and 
I'eport  on  the  conduct  of  others  than  can  be  found  in  any 
other  country. 


250  EVOLUTION  OF  GOVERXAPEXTS  AND  LAWS 

Though  classed  as  a  despotism  by  Europeans,  China  had 
encouraged  learning  through  many  centuries,  while  European 
kings  discouraged  it.  In  theory  education  and  merit  were 
the  sole  means  of  gaining  official  station  and  of  retaining  it 
when  once  acquired.  Knowledge  of  the  laws  was  exacted  of 
all  officials.  Those  who  wielded  the  powers  of  government 
were  not  above  the  law,  but  themselves  liable  to  punishment 
for  its  violation.  A  western  judge  is  not  lial)le  to  punishment 
for  a  wrong  judgment,  but  in  China  all  the  court  Qfficials  as 
well  as  the  judge  were  subject  to  punishment  for  disregard- 
ing the  law. 

Until  very  recent  times  the  rulers  of  Europe  refused  to  give 
information  to  their  subjects  of  the  doings  at  their  courts. 
The  Emperors  of  China  have  long  made  public  their  official 
acts,  and  through  the  Peking  Gazette  all  might  keep  informed 
of  the  acts  and  orders  of  the  government. 

The  people  of  China  have  from  a  very  early  day  enjoyed, 
not  only  a  large  measure  of  liberty  of  individual  action,  but 
of  association  and  combination  as  well.  The  Empire  includes 
all  varieties  of  climate,  soil,  and  productions.  Perpetual 
winter  reigns  on  the  peaks  of  the  Thian  Shan  and  Kuen  Lun, 
while  the  most  southern  provinces  extend  into  the  tropics. 
The  people  have  never  relied  on  any  other  country  for  the 
necessaries  or  even  luxuries  of  life.  Foreign  commerce  has 
always  been  limited,  yet  the  internal  commerce  of  China  is 
and  long  has  been  second  to  that  of  no  country  in  the  world. 
It  has  never  been  the  policy  of  the  rulers  of  China  to  inter- 
fere with  the  useful  activities  of  the  people,  nor  lias  the  gov- 
ernment for  any  long  period  attempted  to  supervise  or  direct 
them.  Industry,  thrift  and  the  performance  of  obligations 
have  been  enjoined  and  enforced.  The  average  Chinaman, 
whether  at  home  or  abroad,  looks  to  China  as  the  only  really 
civilized  country  in  the  world,  and  the  best  place  on  Earth  in 
which  to  live.     Is  it  quite  certain  that  he  is  altogether  wrong? 

It  is  easy  to  point  out  moral  blemishes  in  the  Chinese.  It 
is  equally  easy  to  see  them  in  Europeans  and  Americans.  It 
is  not  easy  to  judge  justly  of  the  relative  merits  and  demerits 
of  the  different  people  or  of  their  institutions  and  laws. 


CHINA  251 

China  combined  democratic  local  self-government  under 
written  laws  with  an  autocratic  central  power  acting  through 
a  most  carefully  devised  arrangement  of  bureaus  and  depart- 
ments designed  to  afford  mutual  checks  on  each  other.  Under 
this  system  one-fourth  of  all  the  people  on  the  globe  lived. 
They  have  known  less  of  the  horrors  of  war  than  any  other 
equal  number  of  people  on  Earth  no  matter  how  selected. 
They  are  subject  to  less  annoying  restrictions  in  the  transac- 
tion of  their  daily  business  than  the  people  of  most  states  of 
Europe.  The  morality  inculcated  by  their  classical  books  and 
the  Buddhist  teachers  is  as  pure  and  lofty  as  that  found  in 
the  teachings  followed  by  the  people  of  the  West. 

As  the  study  of  a  foreign  language  is  one  of  the  best  means 
for  learning  ones  mother  tongue,  so  the  study  of  the  code  of 
laws  most  dissimilar  to  that  of  our  own  country  is  an  excellent 
method  of  finding  out  the  defects  and  absurdities  of  the  sys- 
tem to  which  the  student  is  accustomed.  The  extreme  dis- 
similarity of  the  institutions  of  China  and  those  of  Europe 
and  America  give  especial  value  to  the  study  of  its  ancient 
moral  teachings,  laws,  customs  and  government. 

Authorities 

Williams  :     The  Middle  Kingdom. 
Langdon :     China  and  the  Chinese. 
Wilson :     China. 
Gray :     China. 

Hue :     Travels  in  the  Chinese  Empire. 
Murray :     Travels  of  Marco  Polo. 
Encyclopaedia  Britannica. 
Staunton:     Penal  Code  of  China. 


CHAPTER  XI 

Japan 

So  far  as  the  history  of  Japan  has  come  down  to  us  it  is 
the  history  of  a  single  dynasty.  No  other  country  is  now 
ruled  by  a  family  so  long  in  power,  to  speak  more  accurately, 
theoretically  in  power.  Starting  with  Jimmu  Tenno,  whose 
reign  commenced  about  660  B.C.,  the  mikados  have  traced 
their  descent  from  him  and  have  been  recognized  as  the  sover- 
eigns of  the  empire.  That  there  were  people  on  the  island 
prior  to  his  time  and  that  many  events  of  great  historic  in- 
terest transpired  long  before,  do  not  admit  of  doubt,  but, 
as  the  Japanese  had  no  written  records  till  the  sixth  century 
of  our  era,  even  the  history  of  the  early  rulers  is  founded  on 
tradition  and  starts  with  the  supernatural  and  mythical.  Ac- 
cording to  the  legend,  Ningo-no-Mikoto,  grandson  of  the  sun 
goddess  Ameterasu-o-mi-Kami,  settled  in  the  south  part  of 
the  island  of  Kiushiu.  His  son,  Jimmu  Tenno,  proceeded 
northward  and  landed  on  the  principal  island  from  the  Bay  of 
Ozaka.  Thence  he  advanced  into  the  country,  subduing  the 
neighboring  provinces,  and  established  his  residence  near  the 
town  of  Nara  in  the  year  660  B.C.  It  is  surmised  that  the 
Ainos,  now  found  only  in  the  extreme  north  of  the  empire, 
were  the  aborigines,  and  that  Jimmu  Tenno  was  the  leader 
of  a  superior  race,  which  invaded  the  country  from  the  south. 
The  character  of  the  inhabitants  of  the  island  at  the  date  of 
his  advent  must,  however,  remain  a  matter  of  conjecture 
rather  than  of  established  fact  until  some  record  not  yet  made 
public  is  discovered. 

The  fundamental  theory  of  the  government,  promulgated 
and  maintained  through  all  the  generations,  is  that  of  a  ruler 
divinely  descended'  and  commissioned  to  govern  the  people 
according  to  his  sovereign  will.  Jimmu  Tenno  is  credited  with 
introducing  the  culture  of  cereals,  hemp,  garlic  and  ginger. 

252 


"       JAPAX  253 

His  early  successors  would  seem  to  have  had  exceptionally 
long  reigns,  as  the  tenth  Alikado,  Sujin  Tenno,  ruled  from 
97  to  30  B.C.  This  would  allow  more  than  an  average  of 
sixty  years  to  each  mikado.  Though  some  progress  was  made 
in  agriculture  and  the  authority  of  the  Mikado  was  so  extended 
as  to  extort  tribute  from  Corea  in  ^2  B.C.,  a  low  state  of 
civilization  may  be  inferred  from  the  existence  of  a  custom  by 
which  on  the  death  of  the  Mikado  or  one  of  his  near  relatives 
his  servants  were  buried  alive  with  him.  A  law  prohibiting 
this  custom  was  promulgated  in  the  year  A.D.  2.  Such  a 
custom  implies  the  prevalence  of  the  most  unmitigated  slavery 
and  abject  submission  to  despotic  power.  It  is  evident  that 
the  dominion  of  the  early  rulers  did  not  extend  over  all  the 
islands,  for  not  until  the  reign  of  Kuko  Tenno,  x\.D.  71  to 
130,  was  the  great  Kuwanto  subdued,  and  an  invasion  from 
Kiushiu  caused  the  subjugation  of  that  island,  which,  though 
the  landing  place  of  the  father  of  the  first  Mikado,  would  seem 
never  to  have  been  subject  to  his  immediate  successors. 
Though  Japanese  writers  seem  to  accept  the  accounts  of  the 
administrations  of  the  early  rulers  as  historic  facts,  there  are 
so  many  elements  of  improbability  connected  with  them  that 
they  hardly  afford  a  safe  basis  for  deductions.  Little  is  known 
of  the  number  of  people  on  the  islands  or  their  condition  prior 
to  the  introduction  of  letters.  It  seems  reasonably  certain 
however,  that  the  early  mikados  ruled  over  a  rather  sparsely 
settled  country,  and  that  their  dominions  were  confined  to  a 
l^ortion  only  of  the  islands.  Despotism  of  the  most  ab.solute 
character  is  the  earliest  form  of  government  of  which  an 
account  is  preserved.  Though  the  Japanese  maintain  that  the 
abolition  of  the  shogunate  and  the  restoration  of  power  to 
the  Mikado  but  reinstate  the  reigning  house  in  the  authority 
which  of  right  it  always  had,  the  actual  power  has  in  the 
course  of  centuries  not  merely  passed  into  other  hands,  who 
have  administered  it  for  long  periods,  but  the  system  of  gov- 
ernment and  the  organization  of  society  have  undergone  radi- 
cal changes.  In  studying  these  changes  let  us  bear  in  mind 
that  we  are  dealing  with  a  jicople  whose  homogenity  has  con- 
tinued  without  material   change   for  more  than  2,000  vears. 


254  EVOLUTION  OF  GOVERNMiENTS  AN'D  LAWS 

There  was  not  at  any  time  after  Jimnni  an  invading  conqueror, 
nor  is  any  account  preserved  of  the  influx  of  a  servile  race. 
The  present  population  of  the  islands  have  descended  from  its 
early  inhabitants  with  but  slight  and  occasional  intermixture 
of  foreign  blood,  never  enough  to  materially  alTect  the  great 
mass.  Whence  the  early  ideas  of  government  were  derived  is 
unimportant.    They  were  essentially  despotic. 

In  202  the  Empress  Jingu  Kogo  invaded  Corea  and  placed 
it  under  tribute.  This  was  followed  by  an  embassy  from  China 
and  the  introduction  into  Japan  of  the  teachings  of  Buddha 
and  Confucius,  and  the  language,  literature  and  laws  of  the 
Chinese.  It  was  several  centuries  however  before  this  pro- 
duced marked  effect,  for  it  is  said  that  the  introduction  of 
Buddhism  is  generally  regarded  as  dating  from  522,  and  that 
the  Japanese  had  no  written  language  till  that  century.  The 
king  of  Kudara  in  Corea  sent  the  Mikado  bonzes,  statues  of 
Buddha,  prayer  books  and  other  religious  paraphernalia.  As 
he  still  adhered  to  the  Shinto  religion  he  asked  for  apothe- 
caries, soothsayers  and  almanac  makers  instead,  for  which  he 
exchanged  munitions  of  war. 

About  the  year  600  the  Empress  Suiko  introduced  into  her 
court  the  manners  of  the  Chinese,  with  whom  at  that  time 
there  was  considerable  intercourse.  How  great  a  change  this 
effected  cannot  be  definitely  stated,  but  it  did  not  materially 
alter  the  form  or  character  of  the  government.  During  her 
reign  the  Buddhist  religion  gained  adherents  rapidly,  and  its 
influence  tended  to  improve  society  and  bring  about  peaceful 
conditions.  The  early  practice  of  burying  living  slaves  and 
wives  with  the  bodies  of  their  deceased  lords  seems  to  have 
continued,  notwithstanding  the  early  prohibition  of  it.  until 
the  reign  of  the  thirtieth  Mikado,  when  a  strict  injunction 
against  it  was  issued. 

In  the  time  of  the  thirty-eighth  emperor,  the  three  chief 
offices  of  Sa-Dai-Jin,  U -Dai- J  in  and  Nai-Dai-Jin  were  created. 
Tenji  also  established  the  office  of  Dai-Jo-Dai-Jin  (great  min- 
ister of  the  great  government),  and  conferred  it  on  his  eldest 
son.  His  friend  Nakatomi  he  made  Nai-Dai-Jin  and  allowed 
him   to  adopt  the   family  name  of   Fujiwara.     This   family 


JAPAN  255 

played  a  most  important  part  in  the  riilership  of  the  empire 
for  several  centuries.  Prior  to  this  time,  except  during  periods 
of  internal  strife  involving  the  succession,  the  government  was 
administered  directly  by  the  Mikado.  He  led  the  armies  of 
peasant  soldiers,  who  disbanded  and  returned  to  their  peace- 
ful callings  when  war  was  over.  On  the  introduction  of 
Chinese  customs  a  court  nobility  grew  up  around  the  mikado, 
which  in  time  deprived  him  of  all  real  authority.  In  the  early 
centuries  and  down  to  the  time  of  Tenji  Tenno  in  the  last 
half  of  the  sixth  century  there  were  no  considerable  cities, 
and  the  Mikados  shifted  their  residence  though  always  within 
the  Gakmai  or  home  province. 

Kuwammu  Tenno,  fiftieth  Mikado,  established  his  residence 
at  Kioto,  which  remained  the  capitol  of  the  empire  till  recent 
times.  He  caused  many  improvements  to  be  made,  and  con- 
structed canals  and  dams  to  regulate  the  water  courses,  built 
temples  and  palaces,  established  schools  and  encouraged  the 
Buddhist  teachers.  The  relation  of  the  Fujivvara  to  the 
Mikado  and  the  important  special  privileges  they  enjoyed  af- 
forded them  the  means  of  greatly  increasing  their  power.  The 
office  of  Kuzvauibaku,  or  regent,  was  made  hereditary  in  the 
J^ujiwaras,  and  from  the  daughters  of  the  house  the  Mikados 
took  their  wives.  With  the  advent  of  weak  princes  early  in 
the  ninth  century  the  practice  commenced  of  inducing  or  forc- 
ing the  Mikado  to  abdicate  in  favor  of  an  infant  member  of 
the  family  and  thus  permit  a  Fujiwara  to  rule  as  regent. 
This  was  carried  to  such  an  extreme  that  all  real  power  was 
taken  from  the  Mikados  and  exercised  by  the  regents.  The 
power  of  the  Fujiwaras  at  court  continued  till  the  close  of  the 
eleventh  century. 

The  growing  influence  and  importance  of  the  noble  houses 
of  the  Taira  and  Minamoto  were  contemporaneous  with  in- 
creasing military  tendencies.  Members  of  these  families  were 
at  the  head  of  the  armies,  resisting  invasions  and  suppressing 
insurrections.  The  Fujiwaras  had  ruled  through  court  in- 
trigues. The  Taira  and  ?\linam()to  hewed  their  wav  with 
the  sword.  With  the  beginning  of  the  twclftb  ccntur\-  feud- 
alism ra])idly  developed.     The  power  of  the  central  despotism 


256  EVOLUTION  OF  GOVERXMiENTS   AND  LAWS 

had  vanished,  and  the  real  force  of  government  was  wielded 
by  lords  who  directed  the  arms  of  the  Samurai  in  the  prov- 
inces. So  marked  was  the  tendency  to  militarism  that  even 
the  priests  of  that  most  peaceful  of  all  religions,  Buddhism, 
appeared  at  the  capitol  in  arms  to  enforce  their  demands.  The 
struggle  for  political  supremacy,  carried  on  jjy  the  rival  houses 
of  Taira  and  Minamoto,  devastated  the  country  for  centuries 
and  w^as  more  enduring  than  any  known  war  for  the  succes- 
sion to  a  throne.  Theoretically  the  right  of  the  Mikado  to 
rule  was  always  recognized.  By  the  success  of  one  or  the 
other  faction  no  right  was  established,  no  claim  of  sovereignty 
denied.  The  struggle  was  for  actual  dominion,  to  be  exer- 
cised in  the  name  of  the  Mikado,  but  in  spite  of  his  feeble 
v/ill.  The  successes  of  the  Minamoto  and  their  allies  under 
Yoritomo  near  the  close  of  the  twelfth  century  resulted  in  his 
taking  the  title  and  office  of  Sci-i  SJiogitn,  which  from  that 
time  became  hereditar}-  in  the  Minamoto  family,  and  its  pos- 
sessor wielded  the  real  power  of  the  government.  Yoritomo 
established  a  council  of  state,  who  were  distributed  over  the 
provinces  to  share  as  military  officers  the  power  of  the  civil 
governors.  He  systematized  the  feudal  system  and  is  called 
its  founder.  He  made  his  headquarters  at  Kama  Kura  near 
the  site  of  modern  Yokohama,  where  he  died  in  1199.  Yori- 
tomo is  credited  with  improving  the  administration  by 
establishing  a  court  of  justice,  levying  a  uniform  tax  and 
forbidding  priests  to  be  warriors.  Though  wielding  the  actual 
power,  he  always  went  through  the  form  of  obtaining  the 
sanction  of  the  Mikado. 

On  the  death  of  Yoritomo  his  son  Yoriiye  succeeded  as 
Shogitn,  but  being  w^eak  and  dissolute,  he  at  once  fell  under 
the  influence  of  his  mother's  family.  At  her  instance  a  familv 
council  with  her  father,  Hojo  Tokimasa,  at  the  head  was 
formed.  This  council  assumed  the  real  power  and  admin- 
istered the  government  in  the  name  of  the  Shogun  and  Mi- 
kado, who  were  allowed  to  live  in  idleness  and  dissipation. 
The  regency  of  the  house  of  Hojo  continued  till  13,^4.  The 
shikken,  as  the  head  of  the  house  was  styled,  took  care  that  the 
shogunate  should   never  pass   into  strong  hands   but   should 


JAPAX  257 

always  be  held  by  an  infant  or  a  weakling.  Though  the 
Hojos  are  given  a  hard  name  in  history,  under  their  rule 
the  country  was  generally  at  peace  and  growing  in  prosperity. 
The  intrigues  and  murders  at  court  were  perhaps  of  less  con- 
sequence than  the  increased  security  of  the  common  people, 
but  this  security  could  hardly  have  been  of  an  exalted  char- 
acter under  the  growing  power  of  the  military  class. 

While  incursions  into  Japan  from  Corea  are  recorded,  none 
of  them  were  in  such  force  as  to  seriously  threaten  the  inde- 
pendence of  the  empire.  In  1275  the  forces  of  the  great 
Kublai  Khan  took  possession  of  Tsushima  and  Iki  and  at- 
tempted to  land  in  Kiushiu,  but  were  driven  off.  Again  in 
1 28 1  a  far  larger  army  was  landed  in  Kuishiu,  but  the  Japa- 
nese under  Hojo  Tokimmie  met  and  routed  them,  and  their 
fleet  was  destroyed  by  a  typhooil  To  one  familiar  with  the 
struggle  for  supreme  power  in  western  nations  it  seems  ex- 
ceeding strange  that  through  all  the  centuries  care  was  always 
taken  to  preserve  the  succession  and  nominal  rule  of  the 
Mikado,  and  that  after  the  power  of  the  Shogun  was  estab- 
lished the  same  system  was  followed  in  reference  to  his  office. 
The  overthrow  of  the  Hojo  in  1134  was  followed  by  an  at- 
tempt on  the  part  of  the  Mikado,  Go-Daigo,  to  resume  the 
active  exercise  of  power  and  by  the  Ashikaga  to  rule  as 
Shogun.  In  order  to  accomplish  this  an  attempt  to  depose  the 
Mikado  by  a  forced  abdication  in  favor  of  the  Ashikaga's 
choice  was  made  and  resulted  in  a  long  internal  struggle, 
each  side  drawing  to  its  support  the  retainers  of  its  partisans. 
For  fifty-six  years  there  were  two  rival  dynasties,  one  of  the 
north  and  the  other  of  the  south.  During  the  wars  of  this 
period  the  country  was  devastated,  and  the  condition  of  the 
people  rendered  correspondingly  miseral)le.  Piracy  developed 
on  the  coast,  and  Japanese  corsairs  ravaged  the  coasts  of  China 
and  Corea.  After  the  settlement  of  their  differences  by  agree- 
ment of  the  rival  claimants  in  1392  the  country  enjoyed 
a  brief  respite,  but  the  spirit  of  faction  and  the  love  of  strife 
attending  the  increase  of  the  local  and  personal  power  of  the 
country  nobility  soon  plunged  the  country  into  civil  war  again. 
The  samurai   ftjllowed   the  daimio   to   whom   thev   were   at- 


258  EVOLUTIOX  OF  GOVF.RXM.RNTS   ANO  LAWS 

tached,  no  matter  what  the  nature  of  the  (juarrel.  The  condi- 
tion of  Japan  seems  to  have  been  essentiaUy  the  same  as  that 
of  Europe  during-  feuihil  times,  when  each  local  ruler  fought 
his  equals  and  murdered  and  pillaged  the  defenceless.  The 
priests  contributed  nothing  for  the  betterment  of  conditions, 
but  by  their  intrigues  and  licentiousness  aggravated  the  miser- 
ies of  the  times.  Kioto  cased  to  be  a  place  of  safety,  and  the 
old  court  nobility — the  Kiig6 — were  forced  to  find  shelter  in 
the  castles  of  the  Daimios  in  the  provinces. 

The  Shogunate  of  the  Ashikaga  terminated  in  1573,  and  a 
vacancy  ensued  until  1603,  when  Tokugawa  lyeyasu  was  in- 
vested with  the  office.  The  first  European  to  reach  Japan 
was  the  Portugese  Mendez  Pinto  in  1542.  He  introduced  fire- 
arms aild  the  Christian  religion.  With  the  firearms  they 
were  greatly  pleased,  but  the  progress  of  Christianity  was 
slow  and  followed  by  bitter  persecution.  The  religion  of  the 
west  cannot  be  said  to  have  ever  exercised  a  marked  infiuence 
on  Japanese  society,  and  the  wonderful  awakening  of  recent 
times  has  been,  not  to  the  religion,  but  to  the  arts  and  civiliza- 
tion of  the  west. 

After  the  conclusion  at  Sekigahara  of  the  bloody  wars 
which  resulted  in  the  elevation  of  lyeyasu  to  the  supreme 
power  as  Shogun,  he  proceeded  to  complete  the  system  of 
feudal  tenures  and  to  parcel  out  the  provinces  among  his  sup- 
porters. He  also  took  measures  to  eradicate  Christianity. 
Under  his  administration  the  feudal  system  reached  its  height 
with  the  Shogun  as  its  head,  instead  of  the  Mikado.  His  great 
success  in  attaining  his  two  main  objects,  the  perpetuation  of 
the  supreme  power  in  his  family  and  the  peace  of  the  country, 
is  attested  by  the  fact  that  his  successors  ruled  substantially 
in  peace  for  the  ensuing  268  years. 

In  Japan,  as  in  feudal  Europe,  the  real  power  of  the  no- 
bility was  based  on  military  organization  and  a  theory  of 
title  to  land.  Without  attempting  any  radical  change  of 
theory,  lyeyasu  moulded  the  system  to  secure  his  own  power. 
There  were  thirty-six  leading  families  besides  his  own  who 
took  the  name  of  Mafsudaira  and  ninety  of  the  Kokushin, 
smaller    landlords,    whose    revenue    ranged    from    10,000    to 


JAPAN  259 

100,000  koku  of  rice  per  year.  These  families  held  theoretic- 
ally as  feudatories  under  the  Mikado,  but  actually  in  their  own 
right.  To  secure  his  own  power  lyeyasu  seized  the  lands  of 
his  enemies  by  force  and  parcelled  them  out  among  his  own 
retainers.  The  system  of  sub-infeudation  under  the  great 
daimios  prevailed  in  Japan  as  well  as  in  Europe.  A  peculi- 
arity of  the  Japanese  system  was  that  the  estate  of  a  daimio 
could  neither  be  enlarged  or  diminished  in  any  way  without 
the  express  consent  of  the  Shogun.  lyeyasu's  retainers,  called 
hatamotos  or  flag-supporters,  ranked  below  the  daimios,  and 
had  each  a  small  train  of  from  three  to  thirty  retainers.  They 
numbered  about  80,000  in  the  empire  and  constituted  the  mili- 
tary basis  of  his  power  by  which  he  held  the  Mikado  practi- 
cally as  a  captive,  though  nominally  his  sovereign.  Below 
these  were  the  private  soldiers,  also  belonging  to  the  Samurai 
or  military  class  and  under  the  command  of  the  Shogun. 
lyeyasu  observed  the  policy  of  separating  the  great  daimios, 
who  had  been  or  were  suspected  of  being  hostile  to  him,  by 
assigning  them  disconnected  tracts  of  land  between  which  he 
placed  his  own  tried  vassals.  The  Daimios  and  Samurai,  like 
the  feudal  lords  of  Europe,  despised  work  and  all  who  labored. 
Many  of  them  were  dissolute  and  given  to  brawling  and 
robbery. 

The  head  of  the  family  held  not  only  the  title  to  the  land 
]jut  had  full  power  over  all  its  members.  The  wife  belonged 
to  the  family  of  her  husband.  The  practice  of  adoption  was 
common,  when  there  was  danger  of  a  failure  of  male  heirs  to 
fill  the  military  tenancy,  in  which  case  the  land  would  escheat 
to  the  lord.  As  in  Europe  the  lords  allowed  the  tillers  of 
the  soil  only  a  meager  subsistence.  The  idle,  criminal  soldiery 
t(jok  the  lion's  share  and  gave  no  return  for  it.  The  essential 
elements  of  the  governmental  system  were  ownership  and 
hereditary  tenure  of  the  land  enforced  by  military  organiza- 
tion. In  lyeyasu's  time  the  Mikado  was  unable  to  direct  the 
military  force  and  therefore  shorn  of  actual  power,  though 
always  recognized  as  the  rightful  ruler  and  the  source  of  all 
titles  of  honor,  which  men  prized  as  highly  in  Japan  as  any- 
where in  Euro[)e.     The  ruk'  of  the  Tokugawa  from  the  time 


260  EVOLUTION  OF  GOVERXMEXTS  AXD  LAWS 

of  lyeyasu  to  1854  was  distinguished  by  a  settled  policy  of 
isolation  from  the  outside  vvt>rld  and  military  rulership  at 
home.  The  feudal  lords  with  the  Slioi^iiii  at  their  head  and 
the  Saiiiiinii  at  their  command  maintained  peace  at  home. 
while  population  multiplied.  The  intercourse  with  the  Dutch, 
the  only  European  nation  favored  with  a  commercial  treatw 
was  carried  on  under  the  most  humiliating  restrictions  and 
confined  to  the  places  designated  by  the  goxernment.  Inter- 
course with  China  seems  to  ha\e  been  more  favored.  Though 
the  military  class  was  strongly  fortified  in  the  possession  of 
all  the  advantages  of  the  Japanese  system,  the  agitation  which 
resulted  in  the  wonderful  modern  awakening  to  new  ideas 
came  from  the  scholars  and  thinkers  among  the  nobility  and 
Saniurai.  The  extreme  poverty  and  ignorance  of  the  Hinin — 
common  people — afforded  them  no  opportunity  for  education, 
interchange  of  thought,  or  combination.  The  nobility  and 
Samurai  during  the  centuries  of  peace  became  more  students 
than  warriors,  and  their  researches  into  the  early  history  and 
religion  of  the  country  resulted  in  the  rapid  development  of  a 
sentiment  in  favor  of  the  abolition  of  the  shogunate  and  a 
return  to  the  ancient  form  of  government  with  the  Mikado  as 
the  real  head. 

The  advent  of  admiral  Perry  with  a  demand  for  a  treaty 
of  commerce  with  the  United  States  in  1854  resulted  in  open- 
ing new  ports  for  trade  by  the  Shognn.  This  was  quickly 
followed  by  treaties  with  other  governments.  The  opponents 
of  the  Bakiifu,  or  SJiogun  government,  violently  opposed  the 
new  treaties  and  used  this  action  of  the  government  as  an 
argument  in  favor  of  the  overthrow  of  the  power  of  the 
Shogun  and  restoration  of  the  Mikado  t(j  his  ancient  auth- 
ority. Though  apparently  reactionary  in  these  teachings  and 
purposes,  they  have  been  real  leaders  in  the  wonderful  awaken- 
ing which  has  followed.  Xot  only  has  the  Mikado  been  re- 
stored to  his  ancient  authority,  but  he  has  l^een  far  more 
active  in  promoting  intercourse  with  the  outside  world  and 
causing  the  youth  of  Japan  to  be  instructed  in  the  learning 
of  the  west  than  the  Bakufu  had  been.  As  a  result  of  the 
destruction  of  the  power  of  the  SJiogun  the  whole  system  of 


JAPAN  261 

which  he  was  a  representative,  and  which  held  such  complete 
dominion  for  two  centuries  and  a  half,  has  been  swept  away 
and  a  reconstruction  of  the  social  system  has  followed.  The 
power  of  the  great  Daimios,  amounting  almost  to  sovereignty 
in  their  provinces,  has  been  completely  broken,  and  the  mili- 
tary order  has  been  abolished.  At  the  time  of  tliis  revolution 
the  whole  population  numbered  about  34,000,000,  of  whom 
about  2,000,000  belonged  to  the  Samurai.  At  the  head  of  the 
nobility  stood  the  Shogiin  with  a  large  army  of  retainers  and 
great  estates.  Next  came  the  Daimios,  great  landowners, 
with  their  military  feudatories.  Of  Daimios  in  1862  there 
were  255,  classified  as  follows,  three  Sanke,  descended  from 
the  three  youngest  sons  of  lyeyasu,  on  whom  he  conferred 
great  fiefs.  Next  thirty-six  Kokttshiu  then  seventy-five  To- 
zama  and  lastly  141  Ftidai.  These  were  ranked  according  to 
their  revenues  measured  in  Kokii  of  rice,  a  measure  equal  to 
a  trifle  less  than  five  bushels.  The  revenues  of  the  different 
Daimios  ranged  from  not  less  than  10,000  to  more  than 
1,000,000  Koku  of  rice.  Next  came  the  Hatamoto,  immediate 
vassals  of  the  Shogun,  with  incomes  ranging  from  500  to 
9,999  Koku,  having  from  three  to  thirty  vassals  each  and 
filling  many  ofiices  of  state.  They  numbered  about  80,000 
families.  Then  the  Gokenin.  The  Samurai  were  exempt 
from  taxes  and  privileged  to  wear  swords.  The  common 
|)eople  were  divided  into  Hiakusho.  peasants,  Shokonin — 
handcrafts  men — and  Akindo — shopkeepers.  Outside  and 
still  below  these  were  the  Etas  (unclean)  and  Hinin — paupers. 
The  above  classification  does  not  include  the  Mikado  and  the 
Ktigc,  or  old  court  nobility,  higher  in  rank  but  wanting  in 
actual  power  and  revenue.  Of  the  Kugc  155  families  were 
recognized.  Though  regarded  as  superior  in  rank  even  to 
the  Shogiin,  under  the  feudal  system  they  lost  both  their 
incomes  and  estates,  and  at  the  time  of  the  revolution  many 
of  them  were  abjectly  poor. 

After  the  fall  of  the  Shogunate  the  Daimios,  ])artly  of  their 
own  accord  and  partly  on  compulsion,  surrendered  their 
authority  to  the  Mikado.  They  were  mostly  retained  as 
governors  for  a  brief  period,  but  the  old  provinces  were  soon 


262  EVOLUTION   OF  GOVERN M^ENTS  AND  LAWS 

broken  up  and  divided  into  Ken,  governmental  districts.  On 
giving-  up  their  possessions  the  Daimios  and  Samurai  were  to 
receive  one-tenth  the  revenue,  and  were  reheved  of  the  sup- 
port of  their  Samurai  and  YasJiiki  with  which  they  had  l)cf()rc 
been  burdened.  The  Samurai  were  Hrst  excused  from  wear- 
ing swords  and  afterward  forbidden  to  wear  them.  Their  in- 
comes were  greatly  reduced  and  they  suffered  most  of  any 
class  from  the  change.  Society  then  became  divided  and 
classified  as  follows : 

1.  The  Mikado. 

2.  The  imperial  family. 

3.  The  Kiiiva  Zoku — the  nobility  including  both  former 
Kuge  and  Daimios. 

4.  Shikokii,  respectable  families,  old  Samurai. 

5.  Common  people. 

The  government  after  the  restoration  was  in  its  principles 
essentially  the  ancient  one,  with  the  power  theoretically  in  the 
Mikado  but  actually  exercised  of  necessity  through  the  instru- 
mentality of  ministers  and  bureaus.  The  great  council  of 
state  consisted  of  three  ministers,  at  whose  sitting  the  Mikado 
presided,  and  this  was  the  supreme  legislative  and  adminis- 
trative authority. 

Ten  departments  of  government  were  established,  over 
each  of  which  a  minister  presided,  namely.  Foreign  Affairs.  In- 
terior, Finance,  War,  Marine,  Education,  Worship  (afterward 
abolished).  Public  Works,  Justice  and  Imperial  Household. 
The  country  was  divided  into  three  Fu — chief  towns — seventy- 
two  Ken — districts — A  Han — the  Riukiu  Islands — and  the 
colony  of  Yezo.     Over  each  Ken  there  is  a  governor. 

The  restoration  of  the  Mikado  was  soon  followed  by  a 
demand  for  popular  representation  in  the  government  and  a 
constitution  limiting  the  powders  of  the  various  departments. 
Tn  1878  provision  was  made  for  local  assemblies  in  the  prov- 
inces. The  qualifications  for  electors  were  that  they  should 
be  males  of  the  age  of  twenty  years  and  pay  a  land  tax  of 
five  dollars — voting  to  be  by  ballot.  These  assemblies  proved 
so  satisfactory  that  on  February  11,  1889  the  Mikado  promul- 


JAPAN  263 

gated  a  constitution  to  take  effect  the  following  year  on  the 
convening  of  the  Diet  for  which  it  provided. 

The  most  important  provisions  of  the  constitution  are  as 
follows : 

"The  Empire  of  Japan  shall  be  reigned  over  and  governed 
by  a  line  of  Emperors  unbroken  for  ages  eternal." 

The  succession  shall  be  to  imperial  male  descendants  ac- 
cording to  the  imperial  house  law. 

The  Emperor  exercises  legislative  power  with  the  concur- 
rence of  the  Imperial  Diet,  which  he  convenes  and  dissolves. 
In  cases  of  urgency,  when  the  Diet  is  not  in  session.  Imperial 
ordinances  may  be  promulgated  to  have  effect  until  the  next 
session  of  the  Diet. 

The  Emperor  determines  the  organization  of  the  adminis- 
tration, appoints  and  removes  civil  and  military  officers  and 
fixes  their  salaries.  He  commands  the  army  and  navy,  de- 
clares war,  makes  peace  and  concludes  treaties.  He  confers 
titles,  ranks  and  marks  of  honor,  grants  pardons  and  com- 
mutes punishments. 

The  second  chapter  provides  that  the  conditions  necessary 
for  being  a  Japanese  subject  shall  be  determined  by  law,  that 
subjects  may  be  appointed  to  civil  and  military  offices  equally, 
are  amenable  to  service  in  the  army  and  navy,  are  at  liberty 
to  change  their  abode  within  legal  limits,  shall  not  be  ar- 
rested, detained,  tried  or  punished  unless  according  to  law  by 
judges  determined  by  law,  that  houses  shall  not  be  entered  or 
searched  without  consent  except  in  cases  provided  by  law, 
that  the  rights  of  property  of  Japanese  subjects  shall  be  in- 
violate and  that  within  limits  not  prejudicial  to  peace  and 
order  they  shall  enjoy  freedom  of  religious  belief,  that  within 
limits  of  law  they  shall  enjoy  freedom  of  speech,  press  and 
public  meetings.  All  these  provisions  apply  to  the  army  and 
navy,  except  as  modified  by  the  laws  and  rules  governing  them. 

The  Im[)erial  Diet  established  by  the  constitution  consists  of 
an  upper  and  lower  house.  The  House  of  Peers  is  com|)oscd 
of  members  of  the  Imperial  family,  of  the  orders  of  nobility 
and  persons  nominated  thereto  by  the  h'mpcror.  The  J  Touse 
of  Representatives  is  composed  of  members  elected  by  the 


264  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

people  according  to  law.     Every  law  requires  the  consent  of 
the  Imperial  Diet. 

Proposed  laws  may  be  initiated  by  the  Emperor  or  either 
house.  The  Diet  shall  be  convened  every  year  and  sessions 
shall  last  three  months,  but  may  be  prolonged  by  Imperial 
order,  and  may  be  convoked  in  extra  session  by  Imperial 
order.  Sessions  of  both  houses  shall  begin  and  end  together. 
When  the  House  is  dissolved  the  peers  must  be  prorogued. 
After  dissolution  of  the  House  of  Representatives  a  new 
House  must  be  convoked  within  five  months.  No  debate  or 
vote  can  be  had  in  either  house  unless  one  third  of  all  the 
members  are  present,  and  a  majority  decides.  Deliberations 
must  be  public,  unless  secret  sessions  are  demanded  by  the 
Government.  Each  house  may  enact  rules  for  its  government, 
and  members  shall  not  be  held  to  answer  elsewhere  for  expres- 
sions or  votes  given  in  the  House.  During  a  session  members 
are  privileged  from  arrest,  except  for  flagrant  offenses,  un- 
less with  the  consent  of  the  House. 

The  Ministers  of  State  and  Delegates  of  the  Government 
may  at  any  time  take  seats  and  speak  in  either  house.  Minis- 
ters of  State  shall  give  their  advice  to  the  Emperor  and  be 
responsible  for  it.  All  laws  and  ordinances  require  the  coun- 
ter-signature of  a  Minister  of  State. 

A  Privy  council,  whose  powers  are  not  defined,  is  recog- 
nized, to  deliberate  with  the  Emperor  on  important  matters 
of  State.  "The  Judicature  shall  be  exercised  by  the  courts 
of  law  according  to  law  in  the  name  of  the  Emperor.  The 
organization  of  the  courts  of  law  shall  be  determined  by  law." 

Judges  shall  be  appointed  from  qualified  persons  and  hold 
office  during  good  behavior.  Trials  shall  be  public  unless  ex- 
ceptional circumstances  demand  secrecy.  New  taxes  or 
changes  in  old  ones  can  only  be  made  by  law,  and  national 
loans  must  have  the  consent  of  the  Diet. 

Projects  for  amending  the  constitution  may  be  submitted  b5' 
Imperial  Order,  but  must  have  two  thirds  of  the  members 
present  and  receive  the  vote  of  two-thirds  of  those  present. 
The  Diet  camiot  modify  the  Imperial  House  law,  the  consti- 
tution cannot  be  modified  by  the  Imperial  House  law,  and  no 
modification  of  either  can  be  introduced  during  a  Regency. 


JAPAN  265 

The  changes  in  the  form  of  the  government  afford  some 
indication  of  the  real  progress  made  by  the  Japanese  people 
in  the  last  half  century.  It  is  unique.  A  nation  which  had 
lived  in  what  may,  as  compared  with  the  lot  of  other  nations, 
be  fairly  designated  as  profound  peace  for  two  hundred  and 
fifty  years,  suddenly  became  thoroughly  dissatisfied  with  its 
internal  system  and  external  relations.  The  tottering  Shogun 
government  opened  the  ports  to  foreigners.  Its  enemies  took 
advantage  of  the  prevailing  prejudice  against  foreigners  and 
Christians  to  overthrow  the  Shogun.  This  accomplished  and 
the  Mikado  restored,  not  only  were  the  old  treaties  ratified, 
but  new  and  more  liberal  ones  were  made.  The  whole  military 
class  was  destroyed,  as  a  class,  yet  following  that  destruction 
the  military  spirit  has  been  aroused,  and  marvelous  advance- 
ment in  the  organization  of  army  and  navy  followed,  civil 
wars  accompanying  the  change  were  quickly  terminated,  and 
whatever  the  impulse  prompting  the  action  of  either  party,  the 
result  is  a  determined  effort  to  produce  a  better  form  of 
government  and  improved  social  and  economic  conditions. 

No  people  on  earth  have  manifested  such  a  willingness  to 
learn  and  profit  from  the  instruction  of  foreign  people  as  the* 
Japanese  during  the  last  fifty  years.  Not  only  have  they 
established  numerous  schools  throughout  the  empire,  in  which 
foreign  as  well  as  native  teachers  are  employed,  but  many  of 
the  flower  of  Japanese  youths  have  been  educated  in  the  lead- 
ing universities  of  Europe  and  America.  Nor  has  the  purpose 
been  merely  to  gain  knowledge  beneficial  to  the  government  or 
the  ruling  class,  but  on  the  contrary  everything  useful  to  the 
people  as  well  as  tending  to  the  strength  and  standing  of  the 
nation  has  been  eagerly  sought  after.  The  recent  wars  with 
China  and  Russia  clearly  demonstrate  the  marked  progress 
made  in  the  art  of  war,  while  the  arts  of  peace  have  been 
cultivated  with  avidity,  and  national  pride  and  military  s])irit 
have  become  correspondingly  active.  The  ]jrogress  has  been 
strictly  Japanese.  It  has  not  been  induced  by  any  influx  of 
?  dominating  superior  race  nor  by  any  foreign  directing  hand. 
The  people  of  Japan,  living  under  a  form  of  government 
which  in  theory  was  an  extreme  representative  of  despotism, 


266  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

have  reached  out  after  wisdom  wherever  they  could  find  it, 
liave  taken  home  the  lessons  they  have  learned  and  assimi- 
lated foreign  ideas  to  Japanese  conditions  with  marvelous 
rapidity.  Under  an  absolute  despotism  the  spirit  of  progress 
lias  developed  with  such  strength  as  to  rule  the  rulers. 

The  labors  of  progressive  Japanese  have  been  recognized 
and  their  counsel  followed  more  readily  than  those  of  re- 
formers in  republican  America.  Of  all  the  nations  of  the 
earth  the  Japanese  have  in  the  last  half  century  been  the  most 
progressive,  yet  the  multitude  of  common  people  are  still  ex- 
tremely poor,  and  the  problems  confronting  the  government 
and  people  are  now  no  less  complicated  and  perplexing  than 
heretofore.  The  basis  of  this  progress  it  must  be  clearly  ap- 
parent did  not  lie  in  the  genius  of  their  government.  Nor 
can  it  be  attributed  to  the  effect  of  the  teachings  of  Christians, 
for  in  no  country  has  less  progress  been  made.  Indeed  one 
of  the  forms  of  agitation  preceding  the  new  development  was 
for  a  restoration  of  the  ancient  religion,  Kami  worship  or 
Shintoism.  Much  of  the  learning  and  customs  of  the  Japa- 
nese was  borrowed  from  China.  The  teachings  of  Confucius 
had  long  been  studied,  and  the  form  of  government  and  or- 
ganization of  society  were  moulded  to  a  great  extent  by  them. 
Buddhism  had  many  followers.  The  constant  inculcation  in 
the  minds  of  the  children  of  the  duty  of  obedience  to  parents 
till  their  death  and  of  worshipful  submission  to  the  paternal 
authority  of  the  Emperor,  which  furnished  the  foundation  of 
Chinese  civilization,  seems  to  have  developed  happier  domestic 
conditions  in  the  islands  than  on  the  continent.  Notwith- 
standing the  effort  to  return  to  the  ancient  religion  and  the 
ancient  form  of  government,  rapid  changes  followed,  result- 
ing in  the  admission  of  light  on  all  questions,  the  emergence 
of  the  Mikado  from  that  seclusion  in  which  he  had  been  re- 
garded more  as  an  object  of  religious  veneration  than  a  ruler 
to  be  obeyed,  to  be  seen,  known,  advised  and  consulted  with 
by  his  subjects,  and  in  breaking  down  the  barriers  which  ex- 
cluded Christianity. 

Though  there  were  some  violent  dissensions  in  the  early 
years  of  constitutional  government  in  Japan  the  trend  toward 


JAPAN  267 

settled  conditions  of  order  has  been  continuous.  During  the 
first  twelve  sessions  of  the  diet,  extending  over  a  period  of 
eight  years,  there  were  twelve  dissolutions,  but  during  the 
next  thirteen  sessions,  extending  over  a  period  of  eleven  years 
there  were  but  two.  During  the  first  eight  years  there  were 
six  changes  of  cabinets;  while  during  the  next  eleven  years 
there  were  but  five. 

Authorities 
Arthur  May  Knapp :     Feudal  and  Modern  Japan. 
Wm.  E.  Grififs:     The  Mikado's  Empire. 
Count  Okuma:     Fifty  Years  of  New  Japan. 
J.  J.  Rein  :    Japan. 
Toyokichi    lyenaga :      The    Constitutional    Development    of 

Japan. 
Foreign  Constitutions. 


CHAPTER  XII 

Turkey 

The  Turkish  race,  that  now  dominates  the  country  which 
was  the  seat  of  the  early  germs  of  western  civihzation,  made 
its  first  appearance,  so  far  as  is  known  to  history,  in  central 
Asia,  where  Chinese  accounts  locate  it  about  i8o  B.C.  In  the 
time  of  Justinian  the  Turks  established  a  large  empire  with 
their  chief  seat  in  the  vicinity  of  the  Altai  Mountains.  The 
mode  of  life  of  the  people  was  mainly  nomadic,  and  the  do- 
minion established  was  not  enduring.  In  course  of  time  the 
tribes  became  scattered,  and  under  pressure  from  Mongol  ene- 
mies early  in  the  thirteenth  century  one  of  them  passed  through 
Persia  into  Armenia.  Having  aided  the  Seljuk  emperor  in  a 
battle  with  the  Mongols,  it  was  allowed  to  settle  on  the  Byzan- 
tine frontier.  On  the  fall  of  the  Seljuk  Empire  Osman,  chief 
of  this  particular  tribe,  succeeded  in  extending  his  power  over 
kindred  tribes  scattered  throughout  Asia  Minor,  and  in  1301 
began  to  coin  money  and  to  have  the  public  prayers  read  in 
his  name  as  monarch.  From  his  accession  to  power  the 
modern  Turkish  empire  dates.  Like  most  founders  of 
despotisms  he  was  a  man  of  capacity  and  morals  superior  to 
most  of  his  contemporaries,  and  devoted  his  energies  with 
singular  disinterestedness  to  the  establishment  of  order  and 
justice,  as  well  as  to  military  operations  against  his  enemies. 
He  combined  with  the  religious  zeal  of  the  devout  Moslem  and 
its  characteristic  military  spirit  great  generosity  and  love  of 
justice.  He  was  devoid  of  avarice,  and  on  his  death  his 
wealth  was  found  to  include  only  two  or  three  suits  of  clothes, 
a  few  weapons,  some  horses  and  a  flock  of  sheep.  His  ad- 
ministration of  justice  was  so  far  superior  to  that  of  the 
Greek  emperor  that  the  subjects  of  the  latter  went  to  him 
for  protection.  For  a  century  the  Ottoman  Empire  was  vigor- 
ously administered  and  its  l)oundaries  extended  l)y  the  descend- 

268 


TURKEY  269 

ants  of  Osman,  till  the  reign  of  Bayazid  I,  when  the  Tartar 
hosts  under  Timiir  overran  the  empire,  annihilated  Bayazid's 
army  and  took  him  prisoner  in  1403.  Timur  withdrew  and 
Muhamed,  son  of  Bayazid,  who  died  in  captivity,  restored  the 
empire.  In  1453  ^vluhamed  II  besieged  and  took  *Constan- 
tinople  and  put  an  end  to  the  Roman  Empire  of  the  east,  which 
had  dwindled  to  a  mere  shadow.  In  1481  a  Turkish  army 
crossed  the  Adriatic  into  Italy  and  stormed  Otranto,  which 
however  they  were  not  able  to  hold.  Under  his  successor, 
Bayazid  II,  the  Turks  won  their  first  great  naval  victory 
off  Sapienza  over  the  Venetians.  The  empire  continued  to 
grow  until  the  reign  of  Suleyman  I,  under  whom  it  reached 
its  greatest  extent  and  power,  but  also  met  with  the  best  or- 
ganized and  most  determined  resistance.  From  Constanti- 
nople the  Sultan  ruled  in  Europe  almost  to  the  gates  of 
Vienna;  in  Asia  beyond  the  Tigris,  and  in  Africa  from  Egypt 
to  Algiers. 

Starting  with  Osman  in  1301  and  continuing  till  the  death 
of  Suleyman  in  1566  the  Turks  had  a  succession  of  remark- 
ably vigorous  and  successful  rulers.  The  degeneration  and 
decay,  which  usually  manifests  itself  so  quickly  in  the  progeny 
of  absolute  monarchs,  did  not  appear,  but  Suleyman  is  given 
the  character  of  one  of  the  best  and  most  accomplished  rulers 
of  his  age,  and  for  forty-six  years  his  vast  dominions  felt  the 
vigor  of  his  untiring  energy.  Although  his  reign  was  sullied 
by  his  execution  of  his  brother-in-law,  whom  he  had  made 
grand  vizier,  and  by  other  arbitrary  executions,  and  by  great 
barbarities  committed  by  his  army  during  the  siege  of  Vienna, 
such  things  were  characteristic  of  that  age.  The  Turkish 
Empire  then  included  all  the  principal  seats  except  Rome  of 
that  ancient  civilization  which  we  have  inherited.  Chaldea, 
Babylon,  Nineveh,  Egypt,  Phoenicia,  Greece,  Carthage,  Pales- 
tine, Constantinople,  all  Asia  Minor  and  most  of  the  Greek 
islands  were  subject  or  tributary  to  the  Sultan.  The  ruler 
was  descended  from  a  barbarous  tribe  of  central  Asia  through 
the  male  line,  intermixed  with  more  |)olishe(l  races  through 
the  females.  He  ruled  entirely  in  accordance  with  the  theory 
of  government  established  by  Mohammed  and  the  Cali])hs.   He 


2^Q  EVOLUTION  OF  GOVKRNMKNTS   AKD  LAWS 

was  aljsolute  in  the  sense  that  his  orders  must  be  obeyed,  and 
that  he  could  not  be  called  to  account  for  any  act  by  any  con- 
stitutional authority.  The  Sultans  have  in  fact  at  all  times 
exercised  arbitrary  power,  and  have  put  to  death  without  trial 
such  persons  as  they  chose,  when  they  could  find  instruments 
to  execute  their  will.  In  the  administration  of  the  govern- 
ment, however,  the  theory  is  not  arbitrary  power  but  divine 
law  as  declared  in  the  Koran.  All  questions  in  courts  of 
justice  are  to  be  determined  by  the  law  declared  by  the 
Prophet,  when  such  can  be  found,  and  in  cases  where  the 
Koran  furnishes  no  rule,  the  precedents  established  by  the 
Prophet  and  the  early  Caliphs  are  of  great  authority. 

The  feudal  system,  which  was  already  declining  in  western 
Europe  in  the  time  of  Osman,  never  gained  much  hold  in  the 
territory  included  in  the  Turkish  empire.  As  a  result  of  the 
Crusades  it  was  established  and  maintained  at  Jerusalem  dur- 
ing the  dominion  of  the  Franks,  but  expired  after  they  were 
driven  out.  The  spirit  of  the  Koran,  following  that  of  the 
New  Testament  in  this  respect,  is  one  of  equality,  and  no  order 
of  nobility  existed  in  the  empire.  Equality  however  referred 
only  to  free  males.  Slavery  was  recognized,  and  women 
were  regarded  as  inferiors.  Polygamy  has  always  been  al- 
lowed, but  in  fact  is  only  practiced  by  a  very  small  number 
of  the  people.  The  teachings  of  the  Koran  constantly  magnify 
the  value  of  the  future  life  and  the  future  joys  of  the  true 
believers  who  are  saved  and  the  frightful  torments  of  the 
damned.  The  heaven  offered  is  a  sensual  one,  fitted  to  the 
low  instincts  of  the  Arabs  of  his  time.  Mohammed  taught 
his  followers  to  despise  the  things  of  this  world,  and  while  he 
made  comparatively  little  effort  to  perfect  a  governmental 
system,  what  he  did  in  that  line  was  enjoined  as  a  religious 
duty  and  became  at  once  binding  as  a  civil  and  religious  duty. 
Herein  lies  a  marked  contrast  between  the  teachings  of  Jesus 
and  those  of  Mohammed.  Jesus  announced  the  moral  law 
and  the  necessity  for  its  observance  in  order  to  gain  future 
happiness,  but  made  no  attempt  to  promulgate  a  code  of  civil 
law.  Throughout  the  whole  history  of  the  Turkish  empire 
the  religious  influence  has  been  of  prime  importance  in  mould- 


TURKEY  271 

ing  public  sentiment  and  private  character.  At  the  time  of 
Siileyman's  reign  Turkey  was  at  least  one  of  the  most  ad- 
\anced  nations  in  agriculture,  manufactures,  internal  com- 
merce and  in  its  schools  and  administration  of  the  laws.  Its 
theory  of  government  and  code  of  laws  were  however  un- 
progressive,  and  while  the  government  of  today  may  not  be 
distinctly  worse  than  that  under  Suleyman,  it  appears  to  be 
so  by  comparison  with  the   Christian  nations. 

From  the  reign  of  Suleyman  the  fortunes  of  the  Turks 
began  to  wane.  His  son  and  successor  Selim  II  was  a  weak 
debauchee,  the  first  of  the  line  who  shrank  from  the  dangers 
of  war  and  preferred  the  pleasures  of  the  palace,  Murad  J II 
who  succeeded  him  had  all  the  vices  and  weaknesses  of  his 
father,  and  the  administration  fell  into  the  hands  of  corrupt 
favorites.  The  Janissaries,  to  whom  as  the  first  regular  stand- 
ing army  of  Europe  was  due  much  of  the  credit  of  the  vic- 
tories under  preceding  reigns,  manifested  a  disposition  similar 
to  that  of  the  old  Praetorian  guard  of  the  Romans.  They 
mutinied  on  several  occasions  and  compelled  compliance  with 
their  demands.  Here  followed  a  succession  of  weaklings  and 
in  1622  Osman,  who  sought  to  free  himself  from  the  Janis- 
saries, was  deposed  and  soon  after  murdered  by  his  vizier 
whom  he  had  deposed. 

Murad  IV,  who  ascended  the  throne  in  1623,  had  the  old 
time  vigor  of  the  Osmanlis.  He  caused  the  leaders  of  the 
nuttinous  Janissaries  to  be  beheaded,  and  proceeded  to  purge 
the  administration  of  its  corrupt  elements  by  causing  all  such 
as  he  deemed  necessary  to  be  put  to  death.  He  was  a  re- 
former, who  carried  out  his  reforms  by  the  methods  of  the 
despot.  His  successor  Ibrahim  again  exhibited  the  weakness 
and  folly  of  a  princely  debauchee.  After  his  time  there  were 
examples  of  vigorous  administration  by  able  grand  viziers, 
but  the  Sultans  were  generally  weak.  Mahumed  II — -1808- 
1839 — exhibited  more  vigor  and  in  1828  destroyed  the  rebel- 
lious Janissaries,  who  had  so  often  disturbed  the  peace  of 
the  capital  and  dictated  terms  to  the  Sultan  and  his  ministers. 
With  the  growth  of  the  power  of  Russia  that  of  Turkey  has 
correspondingly  waned.     The  evils  of  its  despotic  system  and 


272  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  blighting  influence  of  its  narrow  fanaticism  have  pre- 
vented that  development  and  progress  which  has  been  so  gen- 
eral in  Europe,  and  instead  of  its  position  as  the  first  power 
in  the  time  of  Suleyman,  it  is  now  looked  upon  as  one  of  the 
weakest  and  worst  governed  nations  of  Europe.  Neverthe- 
less modern  ideas  are  permeating  the  empire.  In  1876  a 
liberal  constitution  was  promulgated,  but  not  given  effect. 
On  July  24,  1908,  after  a  bloodless  revolution  the  constitution 
of  1876  was  restored.  Turkey's  European  possessions  have 
been  repeatedly  curtailed  and  in  191 2  Italy  had  forcibly  taken 
a  part  of  her  African  possessions,  and  the  allied  Balkan  states 
and  Greece  have  waged  successful  war  and  inflicted  crushing- 
defeats  on  her,  further  curtailing  her  hold  on  Europe. 

Prior  to  the  revolution  of  1908  the  governmental  system  of 
Turkey  was  a  theocratic  despotism,  hereditary  in  the  family 
of  Osman.  The  Sultan  is  still  the  spiritual  head  of  the  Moslem 
world,  but  under  the  new  constitution  his  temporal  power  is 
that  of  a  constitutional  monarch.  A  ministry  responsible  to 
the  Turkish  parliament,  instead  of  to  the  Sultan,  has  been 
established.  The  grand  vizier,  named  by  the  Sultan,  pre- 
sides over  the  council  of  ministers,  which  is  made  up  of  the 
Sheik-ul  Islam  and  the  ministers  of  home  and  foreign  affairs, 
war,  finance,  marine,  commerce  and  public  works,  justice, 
public  instruction,  evkof,  grand  master  of  ordnance  and 
president  of  the  council  of  state.  The  Sheik-ul  Islam  is  the 
head  of  the  Ulema  and  representative  of  the  Moslem  Hier- 
archy, being  nominated  by  the  Sultan  with  the  approval  of 
the  Ulema,  the  general  body  of  doctors  of  Mohammedan  law. 
The  importance  of  the  religious  establishment  is  disclosed  by 
the  vast  possessions  of  the  mosques  and  the  fact  that  all  the 
Moslem  schools  are  connected  with  the  mosques,  and  the 
government  through  the  minister  of  public  instruction  and 
board  of  censors  exercises  a  censorship  over  all  the  books  used 
and  branches  taught  in  the  schools.  This  censorship  has  at 
times  also  been  extended  to  the  Christian  schools  in  Armenia 
and  elsewhere,  and  the  use  of  books  inculcating  doctrines 
deemed  dangerous  has  been  suppressed.  The  minister  of 
evkof  is   at   the  head   of   the   department   having   charge   of 


TURKEY  273 

propert}'  held  by  the  mosques  either  for  rehgious  uses  or  in 
trust  in  whole  or  in  part  for  uses  declared  by  the  donors.  It 
is  estimated  that  between  one-third  and  one-half  of  all  the 
property  in  the  empire  is  held  by  the  mosques.  The  admin- 
istration of  the  mosque  revenues  and  the  execution  of  the 
various  trusts  on  which  much  of  the  property  is  held  render 
the  department  of  cvkof  one  of  the  most  important  of  the 
government.  For  administrative  purposes  the  empire  is  di- 
vided into  vilayets  (provinces),  over  which  a  vali  (governor), 
is  appointed.  These  are  divided  into  sanjaks  or  mutessariks, 
which  are  subdivided  into  kacas,  which  are  again  subdivided 
into  nahics.  The  chief  officers  under  the  valis  are  styled  re- 
spectively mutessarifliks,  kaimakams  and  inndirs.  The  valis 
and  mutcssarifs  bear  the  title  of  pasha,  and  all  but  the  niudirs 
are  appointed  from  Constantinople.  These  are  named  by  the 
valis.  All  these  officers  exercise  both  judicial  and  executive 
functions  and,  except  the  mudirs,  are  mostly  chosen  from  a 
place  other  than  that  where  they  rule.  Each  of  them  has  a 
council,  composed  of  members  of  the  different  communities, 
with  whom  he  advises  as  to  matters  of  detail.  The  character 
of  the  local  administration  is  directly  dependent  on  the  char- 
acter and  capacity  of  the  vali,  who  is  a  local  autocrat.  The 
collection  of  the  revenue  is  farmed  out  to  the  highest  bidder, 
a  system  always  productive  of  oppression  and  dishonesty. 
The  authority  of  the  different  officials  is  without  definite  limi- 
tations and  naturally  is  irregularly  and  oppressively  exercised. 
No  efficient  system  of  checking  the  accounts  of  officials  who 
handle  the  public  revenue  exists,  and  the  Turkish  officials  are 
generally  rated  as  corrupt  and  avaricious.  The  Moslem  poi)u- 
lation  is  of  course  wholly  subject  to  the  official  system  above 
•outlined,  but  foreigners  settled  in  the  country  are  by  treaty 
stipulations  exempted  from  the  jurisdiction  of  the  local  courts, 
and  cases  between  themselves  are  heard  before  the  consuls  of 
their  respective  governments.  Cases  between  a  Turk  and  a 
foreigner  are  heard  l)efore  a  mixed  court.  I'cforc  the  rcNohi- 
tion  military  .service  was  compulsory  only  on  Moslems.  It  is 
now  compulsory  on  all  Ottomans.  There  are  many  schools 
maintained  in  the  Christian  communities  of  the  Greeks,  Ar- 


274  EVOLUTION  Ol-   GOVERNMENTS  AND  LAWS 

nieiiians  and  Syrians,  sonic  of  which  afford  a  good  range  of 
studies  when  not  restricted  by  the  censorship,  which  the  fan- 
atical Moslems  at  times  exercise. 

Under  the  early  caliphs  the  schools  were  not  merely  for 
the  purpose  of  propagating  a  knowledge  of  the  Koran,  1)ut 
there  was  an  unrestrained  desire  for  improvement  in  the 
knowledge  and  use  of  language  and  of  the  sciences.  Much 
was  borrowed  from  Greeks  and  Romans,  and  while  the 
superiority  of  the  Koran  over  all  other  theological  teachings 
was  maintained,  the  search  after  truth  outside  its  covers  was 
stimulated  rather  than  suppressed,  but  from  the  tenth  century 
the  orthodox  Sunnites,  who  still  maintain  their  ascendency  in 
Turkey,  have  most  successfully  inculcated  profound  rever- 
ence for  the  established  faith  and  stifled  all  tendencies  to 
freedom  of  thought  and  original  investigation.  The  princi- 
pal school  of  Turkey  is  the  University  of  Constantinople. 
Most  of  the  students  are  said  to  come  from  the  poorer  classes, 
and  enter  this  school  after  having  received  primary  instruction 
in  the  local  schools  sufficient  to  enable  them  to  read,  write, 
count,  and  repeat  the  Koran.  They  are  first  taught  classical 
Arabic  grammar  and  then  the  dogmas  of  Islam.  The  Koran, 
traditions  of  the  Prophet  and  the  Sunna  are  expounded  by  the 
teachers,  and  the  pupil  is  given  some  instruction  in  the  prin- 
ciples of  government  as  administered  in  the  courts.  On  con- 
clusion of  his  course  the  scholar  goes  out  with  his  certificate 
to  find  a  place  as  a  teacher,  preacher,  cadi  or  mufti  or  in  some 
other  governmental  post.  The  great  corporation  of  the 
Ulcfiia,  of  which  he  has  become  a  part,  is  usually  able  to  find 
him  a  place  without  difficulty,  for  there  are  not  nearly  enough 
graduates  to  fill  all  the  positions.  The  purely  religious  offices 
of  imam  or  khatib  are  not  given  exclusively  to  students  and  do 
not  confer  a  place  in  the  hierarchy  or  special  social  status,  but 
the  cadi,  local  judge,  receives  his  appointment  from  the  gov- 
ernment and  is  a  person  of  importance.  In  every  place  of 
any  importance  there  is  at  least  one  cadi,  who  tries  and  decides 
all  causes.  From  his  decision  an  appeal  lies  to  the  mufti,  who 
reviews  the  questions  of  law  only.  These  officers  are  to  some 
extent  independent  of  the  central  authority,  and  the  spirit  of 


TURKEY  275 

religious  zeal  and  common  interest,  added  to  the  great  local 
influence  gained  by  them  by  reason  of  their  superior  learning 
and  judicial  functions,  renders  the  Ulcma  a  power  which  no 
Sultan  has  ever  been  able  to  ignore.  It  was  a  powerful  factor 
in  the  revolution  of  1908. 


CHAPTER  XIII 

Greece 

We  know  the  Greeks  better  than  any  other  ancient  people 
besides  the  Hebrews,  mainly  because  more  of  their  literature 
and  of  the  records  of  their  doings  have  come  dmvn  to  us 
than  from  any  other.  Their  language  was  the  vehicle  through 
which  we  received  the  new  testament,  and  their  culture  has 
been  preserved  and  transmitted  to  us  in  many  ways.  Though 
lew  in  numbers  at  all  times  and  operating  in  a  limited  field, 
their  intellectual  activities  were  such  that  their  works  are  still 
worthy  of  close  study  and  full  of  instruction.  In  govern- 
ments and  laws  they  furnish  experiments  on  a  small  scale  of 
many  schemes  of  social  organization.  Unlike  their  oriental 
neighbors,  they  adhered  to  no  beaten  path  but  were  full  of 
originality  and  invention.  No  religious  creed  enjoined  loy- 
alty to  a  particular  form  of  government  or  imposed  its  laws 
on  them.  No  ruler,  prior  to  Alexander,  was  able  to  establish 
his  authority  over  all. 

Though  much  of  tradition  and  more  of  fable  concerning 
the  early  inhabitants  of  Greece  have  come  down  to  us,  it  is 
sufficient  for  our  purpose  to  know  that  in  the  earliest  times, 
concerning  which  we  have  any  light,  there  were  movements 
of  people  from  northern  Asia  Minor  into  Greece  and  that 
Phoenician  traders  settled  on  the  coast.  While  Homer  writes 
of  kings,  and  the  Greek  traditions  name  early  kingdoms,  the 
extent  of  each  was  so  small  that  the  name  seems  illy  fitted. 
The  characteristics  of  the  early  organizations  are  analogous 
to  those  of  tribes  rather  than  states.  The  king  was  a  chief, 
whose  authority  was  fixed  partly  by  custom  and  partly  by 
personal  capacity  to  lead. 

The  most  marked  peculiarity  of  the  development  of  the 
early  Greek  societies  was  the  tendency  to  segregation  and  to 
build  cities.     Not  only  in  Greece  proper  but  throughout  the 

276 


GREECE  277 

Greek  islands,  the  coast  settlements  in  Asia  Minor  and  on 
the  continent  of  Europe,  each  settlement  developed  its  city  of 
more  or  less  size,  with  so  much  adjacent  land  as  was  neces- 
sary for  its  support,  and  maintained  its  petty  government, 
independent  of  every  other  city  or  state.  Though  the  form 
of  government  was  in  the  earliest  times  usually  monarchical, 
most  of  the  petty  kings  were  content  to  rule  over  single  cities 
and  rarely  attempted  concjuests  beyond  the  lands  used  by  their 
people.  The  desire  to  hold  other  cities  by  force  seems  to  have 
been  almost  unknown,  though  there  were  instances  of  the  ex- 
action of  tribute.  The  island  of  Crete  may  be  mentioned  as 
an  exception.  The  authority  of  IMinos  and  other  of  its  kings 
is  said  to  have  extended  over  the  whole  island,  and  the  ro- 
mantic tale  of  Theseus  relates  that  Athens  was  forced  to  pay 
tribute  to  Minos  until  Theseus  liberated  it.  How  much  of  his- 
tory and  how  much  of  fable  is  contained  in  accounts  of  these 
persons  it  is  impossible  to  determine. 

In  the  early  Greek  communities  the  king  consulted  the  elders 
in  matters  of  public  interest,  and  matters  of  first  importance 
w^ere  submitted  to  and  decided  by  a  popular  assembly.  Poly- 
gamy was  not  allowed,  but  slavery  existed  from  the  earliest 
times  till  the  subjugation  by  the  Romans.  As  our  accounts 
of  the  first  Greeks  come  through  themselves,  it  necessarily 
follows  that  the  record  starts  with  a  people  considerably  ad- 
vanced in  knowledge  and  the  arts.  That  much  of  their 
culture  was  borrowed  is  conceded,  and  credit  is  given  the 
Phoenicians  for  their  alphabet. 

Sparta 

The  most  peculiar  and  enduring  government  was  that  de- 
veloped at  Sparta.  The  early  Dorian  settlements  in  the  mid- 
dle valley  of  the  Eurotas  in  Laconia,  forming  a  cluster  of 
villages,  developed  into  the  Spartan  state.  When  these  set- 
tlements were  first  made  and  just  what  com|)rised  the  king- 
dom of  Agamemnon,  whose  fame  may  rest  far  more  on  the 
vivid  imagination  of  Homer  than  on  historic  facts,  is  un- 
known. The  liistoric  jjeriod  is  generally  regarded  as  dating 
from   the   time  of 'Eycurgus,   abdut  900   llC.      'ihe  elements 


278  EVOT.UTION  OF  CnVKRNMlKNTS  AND  T.AWS 

making  up  the  Spartan  state  were,  i ,  The  Citizens,  who 
were  Dorians,  2,  The  Perioeci,  who  dwelt  about  the  city  in 
Laconia  and  were  landholders,  but  given  no  voice  in  the  gov- 
ernment, and  3,  The  Helots,  who  were  serfs  of  the  state, 
bound  to  the  soil  and  compelled  to  till  it  for  the  Spartan  own- 
ers, to  whom  they  were  forced  to  yield  a  large  share  of  the 
entire  produce.  These  were  allowed  to  have  families,  could 
not  be  sold  out  of  the  country  and  fought  in  the  wars. 

At  the  head  of  the  state,  though  with  little  real  power,  were 
two  hereditary  kings,  who  commanded  the  armies  in  war. 
The  council  of  elders  {gerousia  or  senate),  was  made  up  of 
twenty-eight  members,  elected  by  the  people  from  amongst  the 
citizens  over  sixty  years  of  age,  who  then  held  for  life,  and 
the  two  kings,  making  in  all  thirty.  The  senate  formulated 
public  measures  and  submitted  them  to  the  general  assembly 
of  the  people  for  approval  or  rejection.  It  was  also  the  great 
court  of  justice.  The  institution  of  the  Ephors  is  said  to  have 
been  established  after  the  time  of  Lycurgus.  They  were  five 
in  number,  elected  annually  by  the  people,  and  had  authority 
to  call  all  public  officers,  even  the  kings,  to  an  account.  It 
was  they  who  had  power  to  make  war  or  peace,  and  in  time 
they  came  to  be  the  chief  power  in  the  state.  The  main 
design  of  the  people  was  to  restrain  the  power  of  the  kings 
through  the  Ephors. 

The  central  idea  of  all  the  Spartan  institutions  was  mili- 
tary. A  Spartan  citizen  had  nothing  to  do  with  any  trade  or 
industrial  occupation.  The  Perioeci  and  Helots  performed  all 
the  labor  of  the  state.  The  Spartan  was  raised  a  soldier,  and 
from  childhood  subjected  to  exercises  and  training  calculated 
to  develop  physical  strength  and  endurance  as  well  as  courage 
and  military  discipline.  Girls,  who  were  to  be  the  mothers 
of  soldiers,  were  trained  similarly  and  exercised  in  running, 
wrestling,  boxing  and  throwing  quoits  and  darts.  The  mili- 
tary spirit  was  inculcated  in  the  females,  and  they  became  the 
censors  of  the  actions  of  the  soldiers.  There  was  great 
freedom  of  association  of  males  and  females  among  the 
young,  and  nowhere  else  among  Greeks  were  women  treated 
with  such  high  respect. 


GREECE  279 

A  peculiar  feature  of  Spartan  life  was  the  public  mess,  to 
which  all  contributed  and  which  all  were  bound  to  attend,  not 
excepting  the  kings.  The  members  were  distributed  to  tables 
in  parties  of  fifteen,  selected  by  ballot.  The  fare  was  plain 
and  partaken  of  by  all  alike.  Especial  attention  was  paid  to 
the  organization  of  the  army  as  well  as  to  the  development 
of  the  individual  soldiers.  The  sole  aim  of  Spartan  policy 
being  to  develop  its  military  power,  the  moral  tone  was  neces- 
sarily low.  At  birth  the  boys  were  inspected  by  the  elders  of 
their  tribe  and,  if  found  deformed  or  puny,  were  exposed  so 
that  they  perished.  The  strong  and  sound  were  regarded,  not 
as  subject  to  the  guidance  of  their  parents,  but  of  the  state. 
They  were  early  accustomed  to  hardships  of  every  kind  for 
the  purpose  not  merely  of  giving  them  strength  and  endur- 
ance, but  also  courage  and  self-reliance.  At  the  age  of  seven 
they  were  assigned  to  classes  and  subjected  to  constant  and 
severe  discipline.  Education  did  not  lead  to  literature,  art  or 
any  useful  calling,  but  to  war  alone.  It  is  most  remarkable 
that,  with  no  application  to  any  useful  labor,  the  Spartans 
through  so  many  years  should  have  maintained  their  physical 
vigor.  Athletic  exercises  were  doubtless  very  beneficial  in 
the  main,  but  the  violent  strains  to  which  youths  were  sub- 
jected often  resulted  in  crippling  or  even  killing  them.  They 
were  also  subjected  to  cruel  beating  as  a  religious  rite,  often 
resulting  in  death.  This  was  said  to  be  for  the  purpose  of 
inuring  them  to  pain.  In  war  the  duty  of  the  soldier  was 
to  conquer  or  die.  No  circumstances  whatever  were  recog- 
nized as  allowing  surrender  or  retreat,  and  one  who  escaped 
from  a  lost  battle  was  disgraced  and  treated  l)y  the  whole 
community,  men,  women  and  children  as  infamous  forever 
after.  While  the  Helots  and  Periocci  tilled  the  soil,  tended 
the  flocks  and  performed  all  useful  labor,  the  ruling  class 
were  always  dwelling  in  a  military  camp  under  strict  and  con- 
stant discipline.  Some  attention  was  paid  to  oratory  and  the 
use  (jf  language,  brevity  and  point  being  the  excellences 
mainly  sought.  As  the  lands  were  parcelled  out  among  the 
people,  and  no  one  was  allowed  to  engage  in  any  business  b\' 
which  wealth  could  be  accunuilated,  there  was  of  necessitv  a 


28o  EVOLUTIOX  OF  GOVERNMENTS  AND  LAWS 

remarkable  equality  of  condition,  though  the  kings  were  al- 
lowed much  larger  possessions  than  the  rest.  The  Spartans 
extended  their  power  in  the  Peloponnesus  at  an  early  time, 
but  did  not  follow  a  policy  of  conquest.  The  purpose  of  their 
military  system  was  defensive  rather  than  offensive.  Not  till 
after  their  people  had  become  corrupted,  during  the  Persian 
wars,  did  they  rule  over  subjugated  communities  by  means  of 
Spartan  governors  and  garrisons.  This  was  soon  followed  by 
the  rise  of  the  Macedonian  power  under  Philip,  which  termi- 
nated the  independence  of  Sparta  as  well  as  the  other  Greek 
states.  For  more  than  500  years  this  state  maintained  its 
unique  character  and  the  integrity  of  its  institutions. 

Its  long  continuance  is  clearly  attributable  to  the  intense 
devotion  of  the  citizens  to  the  preservation  of  the  state. 
Patriotism  here  was  in  fullest  bloom.  Each  individual  deemed 
the  state  entitled  to  all  his  eft'orts  while  living  and  to  the 
sacrifice  of  his  life  when  necessary.  Nowhere  else  has  the 
spirit  of  self-sacrifice  been  so  constantly  maintained  or  at  so 
high  a  pitch,  yet  this  devotion  was  not  prompted  by  love  of 
man  nor  of  all  the  people  composing  the  state,  nor  of  the 
Spartan  citizens  as  individuals.  It  was  devotion  to  that  body 
of  men  of  which  the  individual  was  a  part.  To  foster  this 
spirit  parents  rejoiced  in  the  death  of  sons  who  fell  bravely 
fighting,  and  mourned  over  and  reviled  those  who  fled  in 
safety.  The  spirit  constantly  cultivated  was  one  of  hardness, 
but  long  singularly  free  from  avarice  and  selfishness.  The 
Helots  were  cruelly  treated,  even  to  systematic  assassination. 
The  natural  affections  were  stifled  to  permit  the  destruction 
of  weak  offspring.  The  system  was  rigid.  It  admitted  of  no 
great  expansion  and  aimed  at  no  intellectual  elevation,  no 
development  of  science  or  philosophy.  Its  one  sublime  ideal 
of  devotion  to  the  public  was  confined  to  the  narrow  limits  of 
Sparta  and  not  only  wanting  in  love  for  others,  but  its  high- 
est purpose  was  the  overthrow  of  enemies  in  battle. 

In  order  to  preserve  the  integrity  of  his  system,  Lycurgus, 
Sparta's  great* law-giver,  prohibited  foreign  travel,  except  in 
the  interest  of  the  state,  and  excluded  all  foreigners,  and 
foreign  commerce  as  well,  from  the  city.    To  maintain  equality 


GREECE  281 

he  perpetuated  poverty.  Children  were  regarded  as  children 
of  the  state,  and  the  boys  were  raised  together  under  a  train- 
ing which  inculcated  craft  and  courage.  Their  clothing  was 
scanty,  and  at  the  age  of  twelve  they  were  deprived  of  all 
but  a  single  upper  garment  a  year.  For  beds  they  were  al- 
lowed to  gather  reeds,  and  slept  together  in  companies.  The 
command  of  the  companies  was  given  to  a  youth  who  had 
been  two  years  out  of  his  class,  chosen  by  an  inspector.  A 
principal  business  of  the  elders  was  watching  the  conduct  of 
the  boys  and  giving  them  instruction.  Modesty  in  the  modern 
sense  was  not  esteemed  a  virtue.  At  certain  festivals  and 
games  the  young  of  both  sexes  appeared  in  scanty  costume  in 
the  presence  of  each  other  and  of  the  elders,  but  all  were 
required  to  conduct  themselves  with  strict  decency  and  de- 
corum in  all  respects.  The  marriage  custom  was  a  forcible 
carrying  off  of  the  bride,  and  the  newly  married  pair  were  not 
allowed  to  remain  together,  but  only  to  meet  each  other  by 
stealth.  It  was  deemed  honorable  for  a  feeble  husband  to 
allow  his  wife  to  have  children  by  a  man  of  superior  qualities. 
It  was  believed  that  this  tended  to  the  production  of  better 
offspring.  Marriage  was  so  far  compulsory  that  an  old 
bachelor  was  in  disgrace,  while  the  father  of  children  was 
honored. 

Three  fundamental  laws  declared  by  Lycurgus  are  men- 
tioned. I.  Not  to  resort  to  written  laws.  2.  Not  to  employ 
in  housebuilding  any  other  tools  than  the  axe  and  saw.  3.  Not 
to  undertake  military  expeditions  often  against  the  same 
enemy. 

Capital  offenses  were  tried  before  the  senate,  others  by  the 
epliors  separately  or  all  together.  There  being  no  written 
laws,  judgment  was  given  in  accordance  with  the  sentiments 
of  the  judge  as  to  the  merits  of  the  particular  case.  The 
simplicity  of  the  Spartan  society  and  the  absence  of  all  com- 
merce with  the  outside  world  aifordcd  no  basis  for  an  elabo- 
rate system  of  laws. 

As  to  the  land  tenure,  although  Plutarch  states  that  Lvcur- 
gus  divided  the  land  into  9,000  shares  for  Spartan  citizens 
and  30,000  shares  throughout  Laconia  for  the  other  inhabi- 


282  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tants,  modern  critics  discredit  the  statement.  Nor  can  any 
very  definite  statement  of  the  hiw  of  inheritance  be  made. 
There  were  inequahties  of  possessions  among  the  people  and 
recognized  titles  to  land.  It  was  from  the  prodnce  of  their 
estates  alone  that  the  Spartan  citizens  furnished  their  rpiotas 
to  the  public  tables.  Whenever  one  became  too  poor  to  con- 
tribute his  share,  he  lost  his  citizenship. 

The  military  organization  started  with  the  cnoinoty,  con- 
sisting of  from  twenty-five  to  thirty-six  men  of  about  the 
same  age  under  a  leader.  Two  to  four  of  these  were  com- 
bined into  a  Pcntecosty,  of  which  two  to  four  formed  a 
Lochtis  and  the  Mora  contained  400  to  900  men.  The  mili- 
tary superiority  acquired  by  the  Spartans  through  their  sys- 
tem not  only  secured  their  independence,  but  gained  for  them 
a  predominating  influence  among  all  the  petty  Greek  states, 
which  they  retained  until  the  Persian  war.  There  was  a  con- 
stant tendency  however,  for  the  number  of  citizens  to  dimin- 
ish, so  that  in  the  time  of  Aristotle  there  were  only  about 
1000.  This  is  attributed  to  the  gradual  concentration  of  the 
title  to  the  land  in  a  few  hands.  No  other  Greek  state  main- 
tained the  integrity  of  its  social  organization  so  long,  but, 
like  every  other  rigid  system  which  contained  no  provision 
for  changing  conditions,  in  time  it  lost  its  early  spirit  and  at 
the  same  time  shut  out  the  invigorating  influences  of  contact 
with  the  outer  world  and  that  spontaneous  growth,  which  can 
only  come  rapidly  under  conditions  which  invite  new  inspira- 
tions. Advancement  comes  with  new  ideals,  and  to  continue 
the  ideals  nuist  advance  as  the  people  move  up.  Mere  perma- 
nency of  institutions  or  conditions  evidences  stagnation,  rather 
than  a  full  and  glorious  life  of  progress. 

A  thens 

The  history  of  Athens  appears  mythical  and  uncertain  till  a 
later  date  than  that  ascribed  to  the  establishment  of  the  Spar- 
tan system.  The  early  Ionian  ])eoplc  of  Attica  were  divided 
into  four  tribes  and  these  again  into  Phrafrics  and  Gcntcs. 
Each  ^qrw.s-  was  composed  of  a  number  of  households  not,  it 
is  said,  necessarily  all  related   to  each  other  by  blood,   but 


GREECE  283 

bound  together  by  religious  ties,  proximity  of  possessions  and 
mutual  dependence  in  protecting  common  interests.  These 
divisions  were  mainly  religious  and  social.  Besides  these  each 
tribe  was  divided  politically  into  three  Trettys,  and  each 
Trctty  included  four  Naukrarics.  Prior  to  the  time  of  The- 
seus there  was  no  central  authority  in  Attica,  each  small  town 
maintaining  its  independence.  Theseus,  who  has  been  in- 
vested by  Greek  imagination  with  heroic  virtues  and  mythical 
adventures,  appears  to  be  a  genuine  historic  character  and  to 
have  first  established  the  ascendency  of  Athens  over  Attica 
and,  if  any  credit  can  be  given  to  the  tale  of  his  adventures 
in  Crete,  he  relieved  the  people  from  the  payment  of  tribute  to 
King  Minos.  There  is  so  little  reliable  history  of  Athens 
prior  to  about  750  B.C.  that  nothing  can  be  safely  built  on  it. 
Codrus  is  said  to  have  been  the  last  who  was  permitted  to  be 
called  king,  his  successors  being  styled  archons  and  holding 
office  for  life  till  Alkmaeon,  when  the  term  of  office  was 
reduced  to  two  years.  This  continued  for  seventy  years, 
when  the  office  was  made  annual,  with  nine  archons  among 
whom  the  powers  were  distributed.  Down  to  714  B.C.  the 
archons  were  all  descendants  of  Medon  and  Codrus,  but  after 
that  date  any  of  the  eupatrids  or  nobles  became  eligible.  At 
the  expiration  of  his  term  of  office  the  archon  whose  adminis- 
tration was  approved  became  a  life  member  of  the  senate  of 
the  Areopagus.  The  functions  of  this  body  were  both  ju- 
dicial and  political.  The  archons  were  not  of  equal  authority. 
At  the  head  was  the  Archon  Eponymous,  who  determined  all 
disputes  relative  to  the  family  "and  relations  in  the  gens  and 
phratry,  and  was  guardian  of  widows  and  orphans.  He  was 
styled  the  Archon,  and  from  his  name  the  year  was  desig- 
nated in  their  chronology.  The  Archon  Basileus  heard  com- 
plaints respecting  offenses  against  religion  and  also  of 
homicides.  The  Polcmarch  was  the  general  and  judge  of  dis- 
putes between  citizens  and  non-citizens.  Each  of  these  con- 
ducted certain  religious  festivals.  T\\q  remaining  six.  stvlcd 
Thesinothetae,  had  general  jurisdiction  of  otlicr  matters  of 
disjnitc.  In  624  B.C.,  Dram,  ilicn  one  of  Ihc  archons,  was 
directed  to  jjut  the  laws   in   writing,  so  that  they  might  be 


284  EVOLUTION   OF  GOVERNMENTS   AND  LAWS 

shown  and  known  beforehand.  The  famed  Draconian  code 
was  not  new  laws  made  by  him,  but  old  ones  reduced  to  writ- 
ing. Its  severity  has  often  been  remarked,  but  so  little  of  it 
has  been  preserved  that  its  contents  cannot  be  given  or  even 
summarized.  It  was  in  his  time  that  the  judges,  called  Ephc- 
tac,  made  up  of  fifty-one  elders  of  leading  gcntcs,  were  es- 
tablished with  power  to  judge  in  certain  cases  of  homicide. 
They  sat  in  three  different  places,  according  to  the  nature  of 
the  charge  and  defense,  and  were  permitted  to  pass  a  sentence 
less  than  death  according  to  the  justification  or  excuse, 
whereas  it  is  said  that  the  Areopagus  could  only  condemn  to 
death.  Peculiar  religious  ideas  connected  with  the  different 
places  seem  to  have  produced  this  system.  The  constitution 
of  such  a  variety  of  courts  for  trial  of  homicides  would  seem 
to  indicate  a  great  number  of  such  offenses.  About  612  B.C. 
Cylon  seized  the  Acropolis  and  attempted  to  establish  himself 
as  tyrant,  but  failed  miserably  and  many  of  his  followers 
were  slain,  some  at  the  sanctuaries. 

At  the  time  of  Solon  the  record  becomes  more  clear,  and 
we  have  a  more  satisfactory  account  of  the  Athenian  state. 
Plutarch  tells  us  that  in  Solon's  time  there  were  great  dis- 
orders in  the  state.  Cylon's  attempted  usurpation  and  the 
slaughter  of  his  followers  in  the  sanctuaries  left  bitter  factions 
and  aroused  superstitious  fears.  But  more  deep-seated  were 
the  troubles  arising  from  the  conditions  of  the  people  and 
their  different  views  of  government.  He  says,  "The  inhabi- 
tants of  the  mountainous  part  were,  it  seems,  for  a  dem- 
ocracy; those  of  the  j^lain  for  an  oligarchy;  and  those  of  the 
sea  coasts  contending  for  a  mixed  kind  of  government,  hin- 
dered the  other  two  from  gaining  their  point.  At  the  same 
time  the  inequality  between  the  poor  and  the  rich  occasioned 
the  greatest  discord,  and  the  state  was  in  so  dangerous  a 
situation  that  there  seemed  to  be  no  way  to  quell  the  seditions 
or  to  save  it  from  ruin  but  changing  it  to  a  monarchy."  Of 
the  poor  debtors  some  were  made  slaves,  some  sold  to  foreign- 
ers, others  sold  their  children.  The  greater  numl)cr  determined 
to  resist  this  oppression.  Solon  was  of  the  eujjatrid  order  and 
had  gained  great  reputation  and  the  confidence  of  all  classes 


GREECE  285 

as  a  soldier  and  a  citizen.  He  was  made  archon  in  594  B.C. 
and  given  authority  to  reform  the  laws  and  remodel  the  gov- 
ernment. He  repealed  the  penal  laws  of  Draco,  except  those 
concerning  homicide,  because  of  their  severity,  idleness  and 
petty  larceny  having  been  punishable  with  death.  A  more 
difficult  question  to  deal  with  was  that  of  the  oppression  of 
the  poor  by  rich  creditors  through  harsh  laws  harshly  enforced 
by  the  wealthy  class,  who  held  all  judicial  offices.  Not  only 
were  most  of  the  small  estates  mortgaged,  which  was  done 
by  setting  up  a  stone  on  the  land  inscribed  with  the  name  of 
the  mortgagee  and  the  amount  of  the  debt,  but  the  creditor 
might  take  the  body  of  his  debtor  as  security  and  in  default 
of  payment  enslave  or  sell  him.  Against  this  system  and  the 
merciless  and  unjust  enforcement  of  it  the  poor  clamored  for 
relief. 

The  difficulties  experienced  by  the  eupatrids  in  maintaining 
order  and  enforcing  the  rights  of  creditors  seems  to  have  in- 
duced them  to  accord  Solon  the  ample  power  he  was  given 
to  reform  the  laws,  he  being  one  of  their  own  order.  The 
poor  also  clamored  for  an  equal  division  of  the  lands.  This 
Solon  denied  them,  but  he  gave  sweeping  relief  to  the  debtors. 
He  released  all  mortgages  and  removed  all  the  mortgage 
pillars  from  the  land.  He  discharged  all  debtors,  whose 
bodies  were  pledged  as  security,  from  their  debts,  released  the 
debtors  who  had  been  enslaved,  and  even  bought  back  others 
who  had  been  sold  out  of  the  country.  He  prohibited  debtors 
from  thereafter  pledging  their  persons  as  security,  and  also 
forbade  them  from  pledging  or  selling  their  children  or  un- 
married sisters.  For  the  relief  of  the  other  debtors,  for  whom 
no  such  security  was  given,  he  provided  that  the  ininac,  which 
before  went  for  seventy-three  drachmas,  should  go  for  100 
thereafter,  thereby  relieving  debtors  by  increasing  the  legal 
value  of  the  coins.  Citizens  who  had  been  disfranchised,  ex- 
cept those  condemned  by  the  areopagus  or  ephetac  or  in  the 
prytaneum  for  murder  robbery  or  treason,  were  restored  to 
their  former  privileges. 

It  was  in  remodelling  the  official  system  that  Solon's  work 
produced  the  most  lasting  though  not  the  greatest  immediate 


286  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

effect.  He  began  by  a  new  classification  of  the  citizens  based 
en  incomes.  Those  having  annual  incomes  of  500  measures 
in  wet  and  dry  goods,  took  first  rank  and  were  called  Pcnta- 
cosiomcdimini.  Those  having  between  300  and  500  measures 
were  put  in  the  second  class  or  equestrian  order.  Those  hav- 
ing 200  to  300  constituted  the  third  class,  and  all  whose  in- 
comes were  less  were  placed  in  the  fourth  class.  The  first 
class  alone  were  eligible  to  the  archonship  and  military  com- 
mands. The  second  were  the  horsemen,  the  third  the  heavy 
armed  infantry.  These  three  classes  were  subject  to  direct 
taxes  on  the  value  of  their  possessions  by  a  graduated  system 
of  valuation,  having  the  effect  to  increase  the  rate  according 
to  the  size  of  the  estate.  The  fourth  class  were  not  subject 
to  direct  taxation,  and  were  not  eligible  to  ofiice,  but  they 
were  given  what  in  time  proved  to  be  a  most  important  right, 
that  of  sitting  and  voting  in  the  general  assembly.  They 
chose  the  archons  from  the  first  class  and  on  the  expiration 
of  their  terms  passed  judgment  on  their  conduct,  and  might 
debar  them  from  taking  seats  in  the  senate  of  the  Areopagus. 
He  also  established  a  senate  of  400  members,  made  up  of 
100  elected  by  the  people  from  each  of  the  four  tribes.  All 
citizens,  except  those  of  the  poorest  class,  were  eligible  to  the 
senate.  The  senate  considered  and  formulated  matters  to  be 
submitted  to  the  general  assembly,  convoked  and  superintended 
its  meetings  and  executed  its  decrees.  The  old  senate  of  the 
Areopagus,  made  up  of  past  archons  whose  conduct  was  ap- 
proved, was  retained  and  given  enlarged  powers  over  the 
execution  of  the  laws  and  the  punishment  of  men  of  idle  and 
dissolute  habits.  The  laws  of  Solon  were  inscribed  on  wooden 
tables,  which  might  be  turned  round  in  the  oblong  cases  that 
contained  them.  Plutarch  says  some  of  them  were  still  pre- 
served in  the  Prytaninm  in  his  time.  Solon  forbade  the  ex- 
portation of  all  agricultural  produce  except  olive  oil.  The 
archons  were  required  to  solemnly  curse  such  as  violated  the 
law.  He  allowed  only  such  immigrants  to  become  citizens  as 
came  to  reside  at  Athens  permanently  and  for  the  purpose  of 
carrying  on  some  useful  calling.  H  a  father  failed  to  teach 
his  son  a  trade  or  profession,  the  son  was  under  no  legal 


GREECE  287 

obligation  to  support  him  in  old  age.  As  the  people  of  At- 
tica had  to  resort  to  wells  for  water,  he  provided  that,  where 
there  was  a  public  well,  all  within  four  furlongs  should  make 
use  of  it,  but  if  the  distance  was  greater  they  must  dig  for 
themselves.  If  after  digging  ten  fathoms  they  found  no  water, 
they  might  fill  a  vessel  of  six  gallons  twice  a  day  at  a  neigh- 
bor's well.  He  that  planted  a  tree  on  his  ground  was  to  place 
it  five  feet  from  the  line,  and  if  a  fig  or  olive,  nine,  because 
of  the  length  of  its  roots.  He  that  dug  a  pit  or  a  ditch  was 
required  to  dig  it  as  far  from  his  neighbor's  land  as  it  was 
deep.  Bees  were  required  to  be  kept  three  hundred  feet  from 
those  of  a  neighbor.  Plutarch  says,  "The  most  peculiar  and 
surprising  of  the  laws  is  that  which  declares  the  man  in- 
famous who  stands  neuter  in  time  of  sedition.  It  seems  he 
would  not  have  us  be  indifferent  and  unaffected  with  the  fate 
of  the  public,  when  our  own  concerns  are  upon  a  safe  bot- 
tom, nor  when  we  are  in  health  be  insensible  to  the  distempers 
and  griefs  of  our  country.  He  would  have  us  espouse  the 
better  and  juster  cause  and  hazard  everything  in  defense  of 
it,  rather  than  wait  in  safety  to  see  which  side  the  victory  will 
incline  to."^  In  all  marriages  except  those  of  heiresses  he 
prohibited  the  giving  of  dowries  and  allowed  the  bride  to 
bring  with  her  only  three  suits  of  clothes  and  a  little  house- 
hold stuff.  This  included  an  earthen  pan  for  parching  barley, 
which  symbolized  her  assumption  of  the  charge  of  the  house- 
hold. The  bride  and  groom  were  directed  to  be  shut  up  to- 
gether and  to  eat  of  the  same  quince.  One  of  the  laws 
forbade  men  to  speak  ill  of  the  dead.  He  also  forbade  reviling 
the  living  in  a  temple,  a  court  of  justice,  the  general  assembly 
or  at  the  public  games.  Offenses  of  this  kind  were  punished 
by  a  mulct  of  three  drachmas  to  the  person  injured  and  two 
to  the  public.  He  introduced  tbe  making  of  wills,  but  re- 
stricted the  right  to  those  dying  without  children.  He  re- 
stricted extravagance  at  funerals  and  prohibited  women  from 
tearing  themselves,  and  no  hired  mourner  was  allowed  to 
utter  lamentable  notes  or  do  anything  else  to  excite  sorrow. 
All  citizens  were  required  to  attend  the  public  entertainments, 

'  I    Plutarch,  p.  185. 


288  EVOLUTION  OF  GOVERNMiENTS  AND  LAWS 

Lilt  prohibited  from  going  too  often.  The  victor  at  the  Isth- 
mian games  was  allowed  a  reward  of  lOO  drachmas  and  at  the 
Olympian  500  drachmas.  There  was  a  reward  of  five  drach- 
mas for  catching  a  he  wolf  and  one  for  a  she  wolf,  the 
former  being  the  price  of  an  ox  and  the  latter  of  a  sheep. 
The  full  text  of  Solon's  code  is  not  preserved.  The  fragments 
above  mentioned  indicate  something  of  its  general  tenor. 
After  his  laws  were  promulgated,  the  senate  and  archons 
were  sworn  to  observe  the  laws  under  penalty  of  a  gcjlden 
statue  as  large  as  life,  to  be  erected  at  Delphi.  This  seems 
to  have  been  the  only  sanction  they  received.  Having  com- 
pleted his  labors,  Solon  found  it  too  severe  a  task  to  defend, 
construe  and  explain  his  own  work,  and  thereupon  obtained 
leave  of  absence  for  ten  years,  during  which  the  laws  were 
to  remain  unchanged, 

Solon's  system  appears  to  have  been  insufficient  to  prevent 
internal  discord,  for  after  his  return  the  people  again  divided 
into  much  the  same  factions  as  before,  the  mountaineers  under 
Pisistratus,  the  rich  of  the  plains  under  Lycurgus  and  those 
of  the  sea  coast  under  Megacles.  Pisistratus,  under  the  pre- 
tense that  he  had  been  assaulted,  obtained  leave  to  keep  a 
body  guard  of  fifty  armed  with  clubs.  This  Solon  opposed 
but  without  success.  Thereafter  Pisistratus  seized  the  Acrop- 
olis and  succeeded  in  establishing  his  authority.  His  dynasty, 
established  560  B,C,,  continued  fifty  years,  with  two  intervals 
however,  during  which  he  was  driven  into  exile.  Accounts  of 
his  reign  and  that  of  his  sons  are  meagre,  but  concur  in  as- 
serting that  he  ruled  largely  through  the  forms  which  Solon 
had  established  and  with  mildness.  After  Hipparchus,  son  of 
Pisistratus,  was  killed  by  Harmodius  and  Aristogiton,  the 
reign  of  Hippias  his  brother  was  harsh  and  cruel. 

For  favors  received  from  the  Alkmoenids,  who  had  been 
driven  into  exile  by  Pisistratus,  in  rebuilding  the  temple,  the 
Delphic  oracle  played  on  the  superstitious  reverence  of  the 
Spartans,  and  in  answer  to  every  consultation  said,  that 
"Athens  must  be  liberated."  The  Spartan  reverence  for  the 
deity  supposed  to  preside  at  the  temple  at  length  caused  them 
to  send  an  army  to  Athens  to  drive  out  the  tyrant.     The  first 


GREECE  289 

expedition  proved  unsuccessful,  but  the  second  accomplished 
the  object  and  finally  expelled  the  tyrant.  This  circumstance 
strongly  illustrates  the  peculiar  notions  of  the  Greeks  of  that 
day.  By  this  expedition  the  Spartans  merely  performed  what 
they  deemed  the  religious  duty  of  liberating  their  great  rival 
from  a  tyrant,  from  which  they  derived  no  material  advant- 
ages, but  suffered  some  losses  of  men.  After  the  expulsion 
of  the  Pisistratids  the  institutions  of  Solon,  which  had  not 
been  destroyed  but  used  by  them  as  means  for  the  execution 
of  their  purposes,  were  restored  to  vitality  with  modifications 
introduced  by  Cleisthenes,  who  allied  himself  with  the  classes 
which  had  formerly  been  excluded  wholly  or  partially  from 
sharing  in  the  exercise  of  public  functions.  He  extended  the 
right  of  citizenship,  which  had  been  confined  to  the  four  Ionic 
tribes,  so  as  to  include  all  freemen.  In  order  to  accomplish 
this  he  resorted  to  a  new  division  into  tribes,  which  disre- 
garded the  ancient  gentes  and  phratrics.  He  divided  the  whole 
population  of  Attica  into  ten  new  tribes,  each  of  which  in- 
cluded a  certain  number  of  denies  or  cantons,  in  which  the 
proprietors  and  residents  were  enrolled.  The  denies  assigned 
to  each  tribe  were  not  all  contiguous,  and  so  a  tribe  did  not 
occupy  a  compact  territory.  This  scattering  of  the  members 
of  a  tribe  and  inclusion  of  all  classes  of  people  without  regard 
to  the  ancient  gentes  tended  strongly  to  unify  them.  The 
ancient  gentes  and  plirairies  remained  as  family  and  religious 
associations,  but  without  political  significance.  City  denies 
and  country  were  included  in  the  same  tribe,  and  jealousy 
between  city  and  country  thereby  avoided.  Each  denie  had 
its  local  interests,  but  the  tribe  as  a  whole  had  no  interest 
distinct  from  that  of  the  state,  l)eing  merely  an  aggregate  of 
demes  for  jjolitical,  military  and  religious  purposes.  Each 
tribe  had  a  chapel,  sacred  rites  and  festivals  and  a  common 
fund  for  these  purposes.  The  denie  was  the  ])rimary  political 
aggregation.  It  had  its  deniareJi  who  kept  the  register  of  en- 
rolled citizens,  its  collective  property,  its  public  meetings  and 
religious  ceremonies,  and  its  taxes,  levied  and  administered 
by  itself.  The  registry  of  citizens  was  corrected  at  the  public 
assembly  by  inscribing  the  names  of  the  sons  of  citizens  who 


2QO  EVOLUTION  OF  GOVERNM/ENTS  AND  LAWS 

had  attained  the  age  of  eighteen.  Sometimes  names  were 
expunged  from  the  register,  in  which  case  an  appeal  could  be 
taken.  Under  the  new  arrangement  the  public  assembly  was 
greatly  increased  in  numbers,  and  the  membership  of  the  senate 
was  increased  from  400  to  500,  made  up  of  fifty  from  each 
of  the  ten  tribes,  chosen  annually.  About  this  time  the  prac- 
tice began  of  choosing  the  senators  by  lot.  The  military 
organization  was  changed  so  that  ten  stratcgi,  generals,  one 
from  each  tribe,  were  chosen.  This  did  not  deprive  the  pole- 
march  of  the  old  constitution  of  all  his  power,  but  the  power 
and  influence  of  the  strategi  steadily  increased.  A  board  of 
ten  Apodektac,  one  from  each  tribe,  managed  the  exchequer. 
With  the  revival  of  popular  government  the  senate  at  once 
became  a  most  important  body,  exercising  a  general  super- 
vision of  the  affairs  of  the  city.  The  political  year  was  divided 
into  ten  portions  called  Prytanies;  the  fifty  senators  of  each 
tribe  remaining  in  constant  attendance  on  the  senate  by  turns 
during  one  prytany.  Each  prytany  was  divided  into  five 
periods  of  seven  days,  and  the  fifty  senators  of  each  tribe 
into  five  bodies  of  ten  each.  Each  body  of  ten  presided  in  the 
senate  for  a  period  of  seven  days,  choosing  by  lot  one  of 
their  number  each  day  for  the  chairman,  who  was  called 
epistates,  and  during  his  day  of  office  held  the  keys  of  the 
Acropolis,  the  treasury  and  the  city  seal.  Senators  not  of  the 
prytany  might  attend  all  sessions,  but  were  not  required  to 
do  so,  except  that  one  from  each  tribe  was  requisite  to  a 
valid  meeting.  The  general  assembly  was  convoked  either 
by  the  senate  or  the  strategi.  In  later  times  there  were  four 
regular  sessions  during  each  prytany  at  which  the  prytanies 
presided,  the  epistates  putting  all  questions  to  vote. 

The  exact  distribution  of  judicial  power  in  the  time  of 
Cleisthenes  cannot  be  stated,  but  the  whole  body  of  citizens 
above  thirty  years  of  age  was  convoked  to  try  persons  charged 
with  certain  public  crimes  and,  when  so  assembled,  bore  the 
name  of  Heliosa  or  Heliasts.  Afterward  6,000  citizens  over 
thirty  years  of  age  were  annually  selected  by  lot,  600  from 
each  tribe.  Five  thousand  of  these  were  distributed  into 
panels  or  decitries  of  500  each,  the  remaining   1,000  being 


GREECE  291 

reserved  to  fill  vacancies.  When  there  were  causes  ripe  for 
trial,  the  ThcsmotJiets  or  six  inferior  archons  determined  by 
lot,  which  dccurics  should  try  and  what  magistrate  should 
preside.  Sometimes  two  dccurics  sat  together.  In  time  the 
archons  came  to  be  chosen  by  lot,  and  any  citizen  was  eligible, 
subject  however  to  an  examination  into  his  status  as  a  citizen 
and  his  moral  and  religious  qualifications.  By  this  time  the 
archons  had  become  shorn  of  much  of  their  power,  their 
principal  functions  being  to  hold  preliminary  examinations, 
preside  at  trials  and  to  pass  sentence  for  petty  offenses.  The 
strategic  however,  were  chosen,  not  by  chance,  but  by  pref- 
erence of  the  citizens  manifested  by  a  show  of  hands.  The 
date  of  the  adoption  of  universal  eligibility  to  office  is  fixed 
as  after  the  battle  of  Plataea. 

The  modifications  of  the  constitution  of  Solon  in  the  time 
of  Cleisthenes  stopped  short  of  that  full  democracy  which 
developed  later.  The  archons  still  retained  much  judicial 
power,  and  the  poh^uiarch  was  still  a  general.  They  were 
then  elected,  not  chosen  by  lot.  The  fourth  class  of  the  census 
were  still  excluded  from  the  principal  offices.  The  senate  of 
the  Areopagus  still  retained  some  of  its  power,  but  the  popu- 
lar bodies  of  the  senate  of  500  and  the  general  assembly  be- 
came the  dominant  forces  of  the  state. 

A  peculiar  institution,  ascribed  to  Cleisthenes,  was  the  ostra- 
cism, designed  to  get  rid  of  the  contentions  of  leaders  of  rival 
factions.  Before  a  vote  'of  ostracism  could  be  taken  a  case 
was  presented  to  the  senate  and  general  assembly.  In  the  sixth 
prytany  of  the  year  these  bodies  debated  and  determined 
whether  the  public  welfare  required  a  vote  to  be  taken.  If 
they  decided  in  the  affirmative,  a  day  was  named,  the  agora 
was  enclosed  with  a  railing  with  ten  entrances  for  the  citizens 
of  each  tribe,  and  ten  vessels  were  provided  to  receive  the 
votes,  which  consisted  of  a  shell  or  potsherd  with  the  name  of 
the  person  whom  the  voter  desired  to  banish  written  on  it.  At 
the  end  of  the  day  the  votes  were  counted,  and  any  person 
against  whom  there  were  6,000  votes  was  ostracized.  He  was 
allowed  ten  days  to  settle  his  affairs  and  then  required  to 
leave  Attica  for  ten  years,  but  he  retained  all  his  proi)erty  and 


292  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

suffered  no  penalty,  nor  was  he  deemed  disgraced.  It  was  in 
fact  a  great  distinction  to  be  regarded  of  so  much  importance 
as  to  require  ostracism. 

The  spread  of  the  Persian  empire  over  Asia  Minor  brought 
Greeks  and  Persians  in  contact  in  Ionia  and  elsewhere,  and 
the  demand  for  submission,  which  had  been  enforced  on  the 
Greek  cities  of  Asia,  was  extended  to  the  islands  and  to 
Greece.  The  vast  resources  of  the  Persian  king  and  the 
prestige  of  the  success  of  Persian  arms  were  such  as  to  cause 
the  king  of  Alacedon  and  many  of  the  Greek  cities,  notably 
Thebes,  and  when  the  final  conflict  came,  Thessaly,  to  submit 
to  the  Persian  king  and  reinforce  his  army.  Democratic 
Athens  in  its  resistance  of  the  foreign  desjwt  exhibited  in  full 
measure  the  vigor  of  a  free  people  fighting  for  their  independ- 
ence. The  battle  of  Marathon,  fought  about  twenty  years 
after  the  expulsion  of  the  Pistratids,  put  an  end  to  the  first 
invasion.  Under  the  leadership  of  Themistocles  the  Athen- 
ians turned  their  attention  to  the  sea  and  began  to  build  ships. 
The  policy  of  Athens  in  many  particulars  stood  in  strong  con- 
trast to  that  of  Sparta.  The  government  of  Sparta  was  nomi- 
nally monarchial,  but  in  fact  an  oligarchy,  that  of  Athens  a 
democracy.  The  Spartans  excluded  all  foreign  commerce,  the 
Athenians  invited  it.  The  Spartans  made  war  on  land  their 
principal  business,  the  Athenians  sought  material  prosperity 
through  peaceful  channels,  but  without  neglecting  their  de- 
fense on  land  and  sea.  When  tht  invasion  under  Xerxes 
came  ten  years  later,  the  Athenians  were  prepared  with  both 
a  fleet  and  an  army.  Rather  than  submit  they  left  Attica  and 
took  their  families  to  Troezen,  Aegina  and  Salamis.  The 
fortunate  circumstances  of  the  destruction  of  many  of  the 
Persian  vessels  by  storms  made  Greek  victory  possible  on  the 
water.  Nothing  better  illustrates  the  peculiarities  of  the 
Greeks  than  their  conduct  during  this  war.  Want  of  ccjncert 
of  action  and  the  celebration  of  religious  festivals,  deemed  of 
more  importance  than  defense  of  their  country,  left  Leonidas 
with  his  little  band  to  confront  the  whole  Persian  host  at 
Thermopylae,  and  this  when  the  situation  was  fully  under- 
stood. The  defense  made  illustrates  the  extreme  of  Greek 
courage  and  devotion. 


GREECE  293 

The  Pan-Hellenic  congress,  convened  on  call  of  Sparta  and 
Athens  on  the  isthmus  of  Corinth  for  the  purpose  of  obtaining 
a  union  of  all  the  Greeks  against  the  Persians,  exhibited 
strongly  the  want  of  harmony  among  the  different  cities  and 
their  utter  inability  to  unite  even  in  a  case  of  such  extreme 
necessity.  Not  only  did  the  distant  cities  in  Crete  and  Sicily 
fail  to  respond,  but  Argos  remained  neutral,  and  Thebes  and 
many  other  cities  espoused  the  Persian  side.  The  dissensions 
among  the  leaders,  prior  to  the  naval  battle  of  Salamis,  would 
have  prevented  the  great  victory  that  followed  but  for  the 
artifice  of  Themistocles,  which  induced  the  Persians  to  hem 
the  Greeks  in  in  the  Bay  of  Salamis  and  thus  prevent  the  ships 
of  the  different  cities  from  scattering.  The  characteristic 
wrangling  and  dissension  among  the  leaders  while  considering 
the  course  to  be  pursued,  was  follow^ed  by  the  no  less  charac- 
teristic skill,  bravery  and  determination  with  which  the  great 
battle  was  won.  The  battle  of  Plataea  found  Greek  confront- 
ing Greek,  but  with  a  marked  difference  of  spirit.  Those  in 
the  Persian  army  were  hardly  a  source  of  strength  to  it,  ex- 
cept perhaps  the  Thebans,  but  the  spirit  of  those  who  defended 
their  country  was  worthy  of  all  admiration. 

Though  Athens  had  been  burned  and  Attica  laid  waste,  the 
people  returned  victorious,  with  a  purpose  and  a  system  that 
soon  made  Athens  the  leading  city  of  the  Greek  world.  The 
development  of  Athens  was  not  unilateral  but  multiform. 
Each  citizen  was  not  merely  invited  but  required  to  take  an 
interest  in  public  affairs  and  assume  his  share  of  responsibil- 
ity for  the  public  welfare.  All  avenues  for  advancement  were 
open  to  each  citizen.  After  the  battle  of  Salamis  the  fourth 
and  most  numerous  order  of  citizens,  who  under  the  constitu- 
tion of  Solon  were  ineligible  to  office,  were  admitted  to  the 
same  privileges  as  the  other  three  classes.  The  contact  of 
Greeks  with  Persians  exposed  the  former,  not  merely  to  the 
force  of  the  great  despotism,  but  to  the  insidious  influences 
of  the  corrupt  system.  The  leading  citizens  in  the  Greek  cities 
were  approached  by  Persian  agents  with  offers  of  bribes,  in 
some  cases  of  money,  in  others  of  establishment  in  power  un- 
der Persian  protection,  and  it  is  a  melancholy  fact  that,  even 


294  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

after  the  ^rcat  victories  of  Salamis  and  Plataea,  Thcmistocles, 
to  whom  more  than  to  any  one  else  was  tUie  the  naval  victory, 
and  Pausanius,  the  Spartan  commander-in-chief  at  the  great 
battle,  were  corrupted  by  Persian  bribes  and  died  in  disgrace. 
Miltiades,  the  commander  at  Marathon,  fell  in  a  somewhat 
different  manner.  Having  induced  the  Athenians  to  place  him 
in  charge  of  an  expedition,  he  diverted  it  to  an  attack  on  the 
people  of  the  island  of  Paros  for  his  own  personal  ends.  He 
was  .repulsed  and  in  his  attempt  to  get  away  received  injuries 
which  disabled  him.  On  his  return  to  Athens  he  was  brought 
to  trial  for  his  misconduct  and  condemned  to  pay  a  fine  of 
fifty  talents;  the  jurors  refusing  to  pass  the  death  sentence 
because  of  his  great  services.  That  the  Athenians  were  able 
to  condemn  and  punish  such  a  man  at  such  a  time  indicates 
most  superior  integrity  in  their  institutions.  The  corruption 
of  Thcmistocles  led  to  his  ostracism  about  nine  years  after 
the  great  victory.  At  Sparta  the  treason  of  Pausanius,  who 
had  long  been  in  corrupt  and  treasonable  correspondence  with 
the  Persian  king,  was  not  readily  believed  by  the  cphors,  and 
it  was  only  after  the  clearest  proof  of  his  treason,  that  an 
attempt  was  made  to  bring  him  to  trial.  When  the  cphors 
attempted  to  arrest  him  he  took  sanctuary  in  the  temple  of 
Athene  Chalcioecus,  where  he  was  confined  till  at  the  point 
of  starvation,  when  he  was  removed  to  die  where  he  would  not 
desecrate  the  temple.  Notwithstanding  the  Spartan  contempt 
of  money  Pausanius  received  much  Persian  gold  and  was 
ruined  by  it. 

Prior  to  and  during  the  Persian  invasion  Sparta  had  been 
allowed  first  place  in  joint  undertakings  of  the  Greek  cities, 
and  a  Spartan  general  commanded  at  Plataea  and  a  Spartan 
admiral  at  Salamis,  notwithstanding  the  great  superiority  of 
the  Athenian  fleet.  After  the  Persians  retired  and  the  Greeks 
followed  them  to  Cyprus  and  Byzantium  the  Spartan  Pau- 
sanius was  still  in  command.  The  traitorous  correspondence 
of  Pausanius  wnth  Xerxes  occasioned  his  recall  to  Sparta  for 
trial,  and  in  his  absence  command  of  the  Greek  forces  passed 
to  the  Athenians.  This  led  to  the  formation  of  a  confederacy 
with  Athens  at  its  head,  for  the  protection  of  the  Greek  cities 


GREECE  295 

against  Persia  about  477  B.C.  The  leading  spirit  in  the  for- 
mation of  this  confederacy  was  the  Athenean  Aristides.  The 
terms  and  purposes  of  the  confederacy  and  its  general  policy 
were  determined  by  a  synod  of  representatives  of  the  cities, 
which  convened  at  the  temple  of  Apollo  at  Delos.  As  the 
head  of  this  confederacy  Athens  at  once  took  a  prominence 
never  before  attained.  It  was  a  confederacy,  designed  not 
merely  to  protect  the  cities  on  the  mainland  of  Greece  and  the 
islands  of  the  Aegean  sea,  but  also  those  on  the  coast  of  Asia 
Minor  and  Thrace  as  well.  From  this  time  till  the  breaking 
out  of  the  Peloponnesian  war  the  power  and  commerce  of 
Athens  grew  rapidly.  The  yearly  contributions  of  the  allies  in 
time  were  largely  changed  from  ships  and  men  to  payments  of 
money,  which  Athens  received.  The  voluntary  character  of 
these  contributions  also  disappeared,  little  by  little,  and  pay- 
ment by  the  delinquents  was  compelled  by  Athens  by  force. 

In  the  time  of  Pericles  great  modifications  of  the  govern- 
mental system  were  made,  and  the  archons  and  various  other 
magistrates  were  chosen  by  lot.  The  senate  of  the  Areopagus 
had  exclusive  judicial  power,  not  clearly  defined,  and  also 
exercised  censorship  over  the  habits  of  the  citizens  and  super- 
vision over  the  proceedings  of  the  public  assembly  to  prevent 
infringements  of  the  established  law.  These  powers  were 
based  on  a  foundation  of  long  usage  and  liable  to  great  abuse. 
They  were  greatly  curtailed,  leaving  only  power  to  try  cer- 
tain cases  of  homicide  and  to  impose  small  fines  for  minor 
offences.  The  main  judicial  power  was  transferred  to  the 
popular  dikasts  in  both  civil  and  criminal  causes.  A  very 
common  method  of  trial  was  by  arbitration,  and  a  number  of 
public  arbitrators  were  annually  appointed,  to  whom  or  others 
chosen  by  the  parties,  all  private  disputes  were  submitted  in 
the  first  instance.  If  dissatisfied  with  their  decision  either 
party  might  carry  the  case  before  a  dikast.  The  regular 
number  of  a  panel  seems  to  have  been  500,  but  for  important 
causes  more  were  sometimes  taken,  and  it  seems  that  less 
sometimes  sat.  These  jurors  during  and  after  the  time  of 
Pericles  were  paid  a  small  sum  per  diem  out  of  the  public 
treasury   while   scrxing.      At  about   the   same   time   the   indi- 


296  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

vidual  magistrates  and  the  Senate  of  500  were  deprived  of 
all  judicial  attributes  except  to  assess  small  fines,  and  the 
laws  of  Solon  were  brought  down  from  the  Acropolis  to  the 
neighborhood  of  the  market.  The  final  and  efficient  judicial 
power  was  thus  vested  in  a  numerous  l)ody  of  common  citi- 
zens, and  this  was  done  mainlv  for  the  purpose  of  obviating 
the  l)ril3ery  to  which  single  or  a  small  number  of  officials 
might  be  subjected :  the  Greeks  of  that  time  exhibiting  a 
marked  weakness  of  character  when  tempted  by  money. 

A  general  power  of  supervision  over  the  magistrates  and 
over  the  general  assembly  was  vested  in  seven  magistrates 
called  Nemophylakes,  who  sat  along  with  the  presidents  of  the 
senate  and  assembly,  and  whose  duty  it  was  to  interpose 
whenever  any  step  was  taken  or  proposition  made  contrary 
to  law.  It  was  the  duty  of  the  Thcsmothctae  annually  to 
examine  the  existing  laws  and  make  note  of  any  that  con- 
flicted, and  in  the  first  prytaiiy  of  the  Attic  year  on  the  eleventh 
day  an  assembly  was  held,  at  which  the  first  business  was  to 
go  through  the  laws  seriatim  and  submit  them  for  approval  or 
rejection.  If  a  law  was  condemned  by  a  vote  of  the  as- 
sembly, or  if  any  citizen  had  a  new  law  to  propose,  the  third 
assembly  of  the  prytany  appointed  500  to  1,000  Nomothetae 
from  among  the  6,000  dikasts  to  consider  the  proposed 
change.  Previous  notice  was  required  to  be  given  by  a  citi- 
zen having  a  new  law  to  propose,  in  order  that  the  time 
necessary  for  the  sitting  of  the  Nomothetae  might  be  meas- 
ured according  to  the  number  of  matters  to  be  submitted  to 
their  consideration.  Public  paid  advocates  were  named  to 
defend  the  existing  law,  and  the  mover  of  a  repeal  was  re- 
quired to  make  out  his  case  before  the  Nomothetae.  The 
power  to  enact  laws,  except  a  decree  applicable  to  a  single 
case,  was  thus  taken  away  from  the  general  assembly.  A 
very  peculiar  provision  was  that  by  which  the  author  of  a 
new  law  was  liable  to  indictment,  trial  and  punishment,  where 
the  new  enactment  contradicted  a  law  already  in  existence 
without  expressly  repealing  it,  or  where  it  was  otherwise 
defective  or  mischievous.  If  the  dikastry  before  whom  *he 
author  was  tried  found  him  guilty,  it  had  the  effect  of  repeal- 


GREECE  297 

ing  the  new  law.  The  punishment  inflicted  in  this,  Hke  some 
other  classes  of  cases,  was  variable.  The  prosecutor  might 
propose  a  sentence  and  the  accused  might  also  propose  one. 
The  dikastry  then  adopted  either  one  or  the  other  without 
change.  If  the  accused  was  acquitted,  the  accuser  was  liable 
to  a  fine  of  1,000  dracJiinas,  unless  one-fifth  of  the  dikasis 
voted  for  conviction.  The  author  of  the  law  could  not  be 
punished  if  the  prosecution  was  instituted  after  the  expira- 
tion of  a  year,  but  the  law  itself  might  be  condemned  and  thus 
repealed.  Publicity,  opportunity  to  produce  evidence  and  to 
be  fully  heard  in  argument  were  characteristic  of  Athenian 
trials.  The  number  of  the  jury  and  modes  of  trial  are  gen- 
erally regarded  as  affording  undue  weight  to  oratory,  but 
no  ancient  system  is  known  to  us  which  on  the  whole  worked 
so  fairly.  Freedom  of  speech  on  all  matters  of  public  interest 
is  a  strong  proof  of  the  vigor  of  the  democracy. 

The  internal  system  as  perfected  in  the  time  of  Pericles 
continued  without  great  change  until  the  Macedonian  con- 
cjuest,  but  the  situation  of  the  members  of  the  Athenian  de- 
fensive league  gradually  changed,  so  that  in  time  all  but  a  few 
of  the  strongest  were  regarded  as  Athenian  dependencies. 
They  were  compelled  to  pay  their  yearly  tribute,  which  was 
kept  at  Athens  instead  of  Delphos.  The  synod,  which  at  first 
determined  the  course  to  be  pursued  in  matters  affecting  the 
public  interest,  ceased  to  exercise  any  authority,  and  all  ques- 
tions were  determined  at  Athens.  Toward  her  new  colonies, 
as  well  as  the  weaker  members  of  the  confederacv,  Athens 
assumed  imperial  powers.  Disputes  between  her  dependencies 
or  their  citizens  with  citizens  of  Athens  were  brought  before 
the  Athenian  dikasts  for  trial.  While  this  in  theory  opened 
to  all  the  same  forum  that  the  Athenian  citizens  were  bound 
to  resort  to  in  contests  with  each  other,  in  practice  it  must 
have  imposed  hardships  on  suitors  residing  at  a  great  distance 
as  well  on  the  score  of  expense  as  of  want  of  familiarity  with 
procedure  and  inability  to  prove  the  facts.  The  excellence  of 
the  domestic  institutions  of  the  head  of  the  confederacy  could 
not  render  palataljJe  arbitrary  dictation  to  the  dependencies. 
Hostility  against   Athens  grew   up   iu   the   subject   cities  and 


298  EVOLUTION  OF  GOVERXMF.XTS  AND  LAWS 

increased  in  strength  as  the  fear  of  a  Persian  despotism  grew 
less.  The  wonderful  growth  of  the  democratic  city  under 
the  leadership  of  Pericles,  its  commerce,  its  ships,  its  wealth 
in  public  treasuries  and  buildings  and  its  brilliance  in  all  lines 
of  culture  and  intellectual  development,  excited  the  jealousy 
of  rival  cities  and  discontent  among  its  dependencies.  With 
the  growth  of  Athens  and  its  allied  cities,  which  maintained 
systems  of  government  democratic  in  their  essential  features, 
the  Spartan  leadership  was  also  extended  among  the  oli- 
garchical cities.  Though  at  all  periods  there  were  frequent 
wars  and  much  fighting  among  the  independent  cities,  the 
numbers  involved  in  the  contiict  were  not  so  great  as  to 
prevent  the  increase  of  population  and  wealth  until  the  break- 
ing out  of  the  Peloponnesian  war.  Sparta  and  her  allies  on 
one  side  and  Athens  and  hers  on  the  other,  in  431  B.C.,  en- 
tered on  a  struggle  for  mastery,  which  involved  substantially 
all  the  Greeks  of  the  mainland,  the  islands  and  the  coast  of 
Asia.  The  struggle  became  so  fierce  that  each  party  in  turn 
sought  aid  from  the  Persians,  and  leaders  on  both  sides  were 
corrupted  by  Persian  bribes.  The  simplicity  of  manners  of 
the  Spartans  gave  way  when  brought  in  frequent  contact  with 
the  orientals,  and  their  generals  were  found  no  more  proof 
against  bribery  than  those  of  other  cities.  The  social  system, 
however,  remained  throughout  the  struggle  substantially  un- 
changed. The  Athenian  democracy,  notwithstanding  the  un- 
wise and  most  disasterous  expedition  to  Sicily,  manifested 
most  wonderful  energy  and  resourcefulness,  and  the  integrity 
of  its  institutions  was  maintained  till  41 1  B.C.  when  a  con- 
spiracy of  the  oligarchical  elements  resulted  in  the  rulership 
of  a  senate  of  400  for  a  few  months.  This  being  soon  over- 
turned, the  democratic  institutions  were  again  restored,  and 
under  them  the  people  manifested  renewed  vigor  and  devo- 
tion to  the  public  welfare.  The  surrender  of  the  city  in  404 
B.C.  was  followed  by  the  establishment  of  an  oligarchy  of 
thirty,  the  spirit  of  whose  rule  was  in  marked  contrast  to  that 
of  the  democracy.  Though  in  the  trial  of  the  generals  after 
the  battle  of  Aegospotami  there  was  a  departure  from  legal 
forms,  and  the  generals  were  condemned  to  death  without  a 


GREECE  299 

regular  trial,  they  still  had  a  hearing  before  the  assembly  and 
were  condemned  by  a  vote  of  the  people  by  tribes.  The 
thirty,  however,  ordered  summary  executions  without  trial, 
and  proceeded  to  get  rid  of  such  of  the  people  as  they  feared. 
Their  tyranny  was  in  striking  contrast  to  the  formal,  free 
and  orderly  administration  of  established  laws  by  the  magis- 
trates and  dikasts.  Though  their  authority  was  established 
with  the  sanction  of  the  victor  in  the  long  and  desperate 
struggle,  its  exercise  was  so  utterly  at  variance  with  the  pre- 
judices and  feelings  of  the  people,  even  of  their  own  partisans, 
that  in  the  following  year  they  were  driven  out  under  the 
leadership  of  the  returning  exiles,  and  the  democracy  was 
restored.  While  the  Peloponnesian  war  was  waged  on  the 
part  of  Sparta  to  destroy  the  power  of  a  hated  rival,  it  must 
ever  stand  to  the  credit  of  the  victor  that,  instead  of  the  de- 
struction of  the  city  after  its  surrender,  after  the  destruc- 
tion of  its  walls,  the  city  was  left  uninjured,  notwithstanding 
the  demand  of  some  of  the  allies  that  it  be  destroyed  and  its 
people  scattered.  The  course  of  Sparta  in  this  respect  was 
in  strict  accord  with  the  principle  of  the  Delphic  Amphicty- 
onic  league,  which  tended  to  mitigate  the  horrors  of  war 
among  different  Greek  cities  and  prohibited  the  destruction 
of  a  conquered  city.  This  league,  religious  in  character, 
seems  to  have  succeeded  in  promulgating,  and  enforcing  in  a 
great  number  of  instances,  humane  principles  mitigating  the 
horrors  of  war.  It  was  only  in  holy  wars,  waged  against 
members  of  the  league  charged  with  some  sacrilege,  that  these 
humane  principles  were  cast  aside  and  barbaric  destruction 
inflicted  without  restraint. 

From  the  close  of  the  Peloponnesian  war  to  the  rise  of  the 
AIaced(jnian  power  was  a  period  of  frequent  wars  and  varying 
comljinations.  Thebes,  the  ancient  enemy  of  Athens  and  fre- 
quent ally  of  Sparta,  under  the  lead  of  Epaminondas  finally 
terminated  the  power  of  Sparta  at  the  battle  of  Leuctra.  The 
Persian  practice  of  hiring  mercenary  troops  became  preval- 
ent with  Greek  cities,  which  now  relied  on  money  rather  than 
on  the  devotion  of  their  citizens  for  offensive  ruid  defensive 
operations.      War,   instead  of  bciuL;-  llie  exercise  of  patrit)tic 


300  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

t 

devotion,  became  a  profession,  and  mercenary  bands,  fighting 
tor  whomever  would  pay,  became  numerous.  The  ancient 
spirit,  so  much  admired  in  subsequent  ages,  decayed.  Greece 
was  stin  the  land  of  culture,  but  not  of  incorruptible  heroes. 

In  this  condition  the  arts  and  arms  of  Philip  easily  placed 
him  at  the  head  of  the  Hellenic  world.  Though  neither  he 
nor  his  son  Alexander  claimed  despotic  powers  over  the  Greek 
cities,  both  were  typical  tyrants,  recognizing  no  restraints. 
At  the  convention  of  deputies  held  at  Corinth  330  B.C.  Alex- 
ander was  appointed  commander  of  the  Greeks  for  the  purpose 
of  prosecuting  war  against  Persia.  By  the  terms  of  the 
agreement  then  made  the  freedom  and  autonomy  of  each 
Greek  city  was  recognized,  and  its  existing  constitution  was 
guaranteed.  Violence  of  one  against  another  was  prohibited 
and  freedom  of  commerce  guaranteed.  Sparta  of  all  the 
leading  cities  appears  to  have  been  the  only  one  which  did 
not  join.  Though  this  convention  effectually  bound  the  cities 
to  Alexander,  it  utterly  failed  to  place  effectual  restraint  on 
him,  for  it  provided  for  the  admission  into  the  cities  of  Mace- 
donian troops,  ostensibly  to  enforce  obedience  to  the  terms 
of  the  agreement.  Protests  against  his  tyrannies  were  un- 
availing. The  revolt  of  Thebes  was  followed  by  its  capture 
and  the  massacre  of  its  people,  including  women  and  chil- 
dren, and  the  destruction  of  the  city.  The  severity  of  the 
treatment  was  in  accordance  with  the  wishes  of  the  Greek 
auxiliaries  of  Alexander's  army.  With  the  ascendency  of 
Alexander  the  independence  of  Greek  cities  ended,  and  the 
peculiar  political  conditions  under  which  the  people  had  pro- 
gressed so  rapidly  in  intellectual  development,  in  literature, 
philosophy,  arts  and  sciences  came  to  an  end,  but  Greek  cul- 
ture endured  and  was  dift'used  over  Asia  by  the  armies  of 
Alexander  and  his  successors,  and  over  Europe  under  the  sub- 
sequent empire  of  Rome. 

No  equal  number  of  people  in  an  equal  period  of  time  have 
left  so  many  evidences  of  intellectual  activity  as  the  Greeks 
from  the  foundation  of  Sparta  to  the  time  of  Alexander.  At 
this  day  the  names  of  illustrious  Greeks  of  this  period  are 
familiar  m  greater  number  to  the  people  of  Europe  and  Amer- 


GREECE  301 

ica  than  those  of  any  other  country  at  any  time,  with  the  ex- 
ception, perhaps,  of  Rome  when  at  its  zenith  of  power.  But 
the  intellectual  activity  of  Greece  was  far  more  diverse  and 
extended  over  a  far  wider  range  than  that  of  Rome. 

The  Greeks  developed  the  idea  of  determining-  controversies 
by  laws  declared  in  advance  of  the  fact  and  by  an  impartial 
tribunal  acting  on  evidence  adduced  at  a  public  trial  with  the 
right  to  a  full  hearing  in  argument  on  the  facts  and  the  law. 
Individuality  and  self-reliance  were  the  leading  character- 
istics of  the  people.  Religion  and  government,  though  not 
wholly  disconnected,  were  not  merged  or  confused.  The 
same  gods  were  worshipped  by  the  Greeks  of  many  cities, 
wholly  independent  of  each  other,  and  the  bonds  of  common 
religion  were  always  much  wider  than  those  of  any  govern- 
mental system.  Though  the  religious  sentiment  was  strong, 
it  was  in  the  main  disconnected  from  political  sentiment,  and 
the  laws  passed  were  based  on  views  of  justice  and  policy 
rather  than  on  religious  sanction. 

Authorities 

Grote :     History  of  Greece. 

Adolph  Holm :     The  History  of  Greece. 

Thucydides. 

Herodotus. 

Plutarch's  Lives. 

Encyclopaedia  Britannica, 


CHAPTER  XIV 


Rome 


The  most  ancient  people  of  Italy  of  whom  we  have  any 
information  were  in  substantially  the  same  stage  of  develop- 
ment as  the  earliest  Greeks  known  to  us.  They  tended  flocks 
and  herds  and  cultivated  the  soil.  They  had  implements  of 
iron  and  woven  clothing.  The  relations  of  the  members  of 
a  family  were  clearly  defined,  and  the  social  organization  de- 
veloped from  the  germ  of  the  household.  Written  history 
does  not  begin  till  centuries  after  the  foundation  of  Rome, 
and  what  is  known  of  the  earliest  days  of  the  city  comes 
through  tradition  and  the  evidence  of  the  works  which  en- 
dured till  letters  were  introduced.  The  mythical  tale  of 
Romulus  and  Remus  no  longer  finds  believers,  and  the  easy 
and  definite  description  of  the  foundation  of  the  city  is  now 
impossible.  At  the  time  of  the  first  settlements  from  which 
the  city  developed,  we  fail  to  find  evidences  of  any  social 
organization  which  included  large  numbers  of  people  or  ex- 
tended over  a  considerable  district.  Apparently  there  was  no 
government  more  comprehensive  than  that  of  a  clan,  and  the 
authority  exercised  was  paternal  in  character.  Rome  grew 
from  the  clans  settled  on  and  about  the  Palatine  hill.  The 
city  took  more  distinct  form  and  character  when  the  walls 
were  constructed  on  this  hill.  A  discussion  of  the  combina- 
tion of  Latin,  Sabine  and  Etruscan  elements  to  form  the  city 
would  serve  no  purpose  here.  We  must  start  with  a  consider- 
able aggregation  of  people,  including  those  following  urban 
pursuits  as  well  as  herdsmen  and  cultivators  of  the  soil. 

The  social  organization  of  the  clans  did  not  disappear  with 
the  growth  of  the  city,  but  the  early  structure  formed  the 
basis  in  this  as  in  most  states  of  that  which  followed.  Though 
the  monogamous  family  with  the  rights  and  duties  of  each 
member  clearly  defined  is  the  product  of  an  advanced  social 
^  302 


ROME  303 

Stage,  it  not  only  existed  at  Rome  in  the  earliest  days,  but 
was  the  most  clearly  marked  feature  of  society,  and  fur- 
nished the  basis  of  the  governmental  system.  The  free  family 
was  the  social  unit.  It  consisted  of  a  father,  who  was  his 
own  master,  a  wife  whom  he  had  wedded  by  the  priestly  cere- 
mony of  confarrcatio,  their  sons  and  sons'  sons  and  their 
lawfully  wedded  wives  and  unmarried  daughters.  It  did  not 
include  the  children  of  a  daughter,  for  if  she  were  married 
they  belonged  to  the  family  of  her  husband,  and  if  not  they 
had  no  place  in  the  family.  All  the  property  of  the  family, 
including  the  slaves,  belonged  to  the  man  at  its  head.  The 
power  of  the  father  in  his  household  was  absolute  and  con- 
tinued till  death.  He  could  punish  wife  and  descendants  even 
with  death.  The  women  of  the  family  were  not  in  fact 
treated  as  slaves,  however,  but  within  the  household  were 
its  mistresses.  Sons  with  families  might  be  allowed  to  man- 
age a  separate  property,  but  in  law  it  belonged  to  the  father. 
A  father  might  even  sell  his  son  as  a  slave  to  a  foreigner. 
As  a  Roman  he  could  not  be  a  slave  in  law  to  a  Roman, 
though  he  might  be  so  in  effect.  While  the  father  was  under 
no  legal  restraint  in  dealing  with  his  family,  he  was  subject 
to  religious  anathema  in  case  of  gross  abuse  of  his  authority. 
From  the  family  the  gens  or  clan  developed,  and  these  were 
distinguished  one  from  the  other  only  by  ability  to  trace  defi- 
nitely the  relationship.  Those  whose  descent  could  be  definitely 
traced  to  a  common  ancestor  belonged  to  the  family.  Those 
who  merely  bore  the  family  name  but  could  not  give  the  chain 
of  descent  belonged  to  the  gens.  Attached  to  the  patrician 
houses  there  was  a  class  of  dependents,  called  clients,  who 
sought  the  protection  of  the  house.  The  relation  of  the  client 
was  intermediate  between  that  of  the  slave  and  the  free  man. 
He  was  in  the  ])ower  of  tiie  patron,  who  ait'onled  him  ground 
to  till  or  other  means  of  livelihood,  appeared  for  him  in  anv 
litigation  and  obtained  redress  for  wrongs  committed  against 
him.  These  client cs  were  regarded  as  part  of  the  familia  and 
were  legally  subject  to  the  will  of  the  father,  who  might,  if 
he  chose,  exercise  the  same  absolute  pcnver  over  them  and 
their  property  as  over  the  rest  of  the   family.     The   father 


304  EVOLUTION    OF   GOVERNMENTS    AND   LAWS 

was  the  religious  head  of  the  household  and  conducted  the 
family  rites.  While  the  sons  in  patrician  families  were  in  all 
personal  affairs  subject  to  the  absolute  power  of  the  father, 
they  were  citizens  of  the  state  and  as  such  had  equal  political 
privileges  and  duties. 

Outside  the  patrician  families  were  the  plebs,  who  were 
protected  by  the  state  but  had  no  share  in  public  affairs.  The 
Roman  people  included  three  original  tribes,  the  Romnes, 
Titles  and  Luceres,  and  these  were  divided  into  thirty  curiae. 
The  curia  was  the  primary  association  with  its  common 
sacra,  priests,  festivals,  chapel  and  hearth.  The  tribal  di- 
vision does  not  appear  of  special  importance  in  the  constitu- 
tion of  the  state,  but  the  curiae  formed  the  basis  of  the  system. 
Just  when  and  how  they  first  developed  is  unknown,  but  the 
first  view  discloses  them  as  including  not  merely  persons  re- 
lated by  blood  or  marriage,  but  persons  not  belonging  to  the 
gentile  families,  with  membership  based  largely  on  occupancy 
of  contiguous  lands  included  within  the  territory  of  the  curiae. 
There  was  great  liberality  in  the  admission  of  citizens  of 
friendly  communities,  who  might  be  granted  the  right  of  citi- 
zenship by  the  comitia  on  renouncing  membership  of  their 
native  city,  otherwise  they  were  regarded  rather  as  guests 
under  protection  of  the  community. 

At  the  head  of  the  earliest  Rome  was  the  king,  who  stood 
as  father  of  the  city  with  powers  corresponding  to  those  ex- 
ercised by  the  father  over  the  gentile  family.  He  was  the 
leader  in  war  and  in  peace,  and  the  religious  head  of  the  state. 
His  powers,  like  those  of  the  patrician,  were  absolute  in 
theory,  yet  restrained  by  custom  and  public  sentiment.  He 
was  chosen  from  among  the  fathers  and  held  office  for  life. 
He  consulted  the  gods  for  the  public  and  named  the  priests 
and  priestesses.  He  made  treaties  of  peace  which  bound  the 
community.  He  alone  had  the  right  to  address  the  citizens 
in  their  public  assemblies,  or  to  name  others  to  do  so.  He 
kept  the  keys  to  the  public  treasury,  and  near  his  dwelling 
was  the  blazing  hearth  of  Vesta  and  the  storehouse  of  the 
community.  He  was  judge  of  the  people  in  all  causes  civil 
and  criminal  and  imposed  such  penalties  as  he  saw  fit.     From 


ROME  30s 

a  sentence  of  death  he  might  allow  an  appeal  to  the  people 
for  pardon,  but  was  not  bound  to  do  so.  He  had  the  right 
to  levy  taxes  and  call  out  the  military  force.  While  he  might 
appoint  subordinate  officers  and  even  a  viceroy  to  rule  in  his 
absence,  all  such  served  subject  to  his  pleasure.  He  might 
nominate  his  successor,  who  was  confirmed  by  the  freemen  in 
a  public  assembly  convoked  for  the  purpose.  In  Case  of  the 
death  of  the  king  without  naming  a  successor  the  senators, 
(patres),  met  and  named  an  interrex  from  their  number,  who 
ruled  not  more  than  five  days.  He  then  named  a  successor 
according  to  an  order  of  succession  fixed  by  lot  for  a  like 
term.  This  second  interrex  might  then  name  a  successor  for 
life.  The  king  thus  named  was  then  accepted  in  the  public 
assembly  by  the  citizens  old  enough  to  bear  arms  and  after- 
ward confirmed  by  the  senate.  When  the  people  were  as- 
sembled at  the  summons  of  the  king  to  decide  on  any  public 
matter,  they  met  in  the  comitium  at  the  north  end  of  the 
forum  and  were  presided  over  by  the  king  or  interrex  who 
put  the  questions.  Each  curia  voted  separately,  a  majority 
determining  its  vote,  and  a  majority  of  the  curiae  decided  the 
question.  While  they  had  no  power  to  pass  laws  or  restrain 
the  power  of  the  king,  the  disposition  of  property  by  will  or 
the  renunciation  of  family  or  gentile  sacra  could  only  take 
place  in  the  public  assembly,  and  adoption  into  the  family 
required  their  assent  as  well  as  presence.  The  senate  was 
made  up  of  fathers  of  the  gentile  houses,  but  did  not  include 
all  of  them.  The  general  theory  of  the  organization  of  the 
state  was  that  each  of  the  tribes  was  divided  into  ten  curiae, 
that  a  curia  included  ten  clans  or  one  hundred  households, 
and  that  each  household  furnished  a  foot  soldier,  each  clan 
a  horseman  and  a  senator.  The  ten  curiae  of  each  tribe  fur- 
nished one  hundred  senators,  or  three  hundred  in  all.  While 
the  number  of  clans  and  households  is  thus  definitelv  stated, 
they  could  not  in  the  nature  of  things  remain  constant,  and 
the  numbers  given  may  not  be  accurate  for  any  date,  but  the 
curiae  were  definite  divisions  of  the  state  and  continued  as 
political  units.  Each  curia  had  its  warden  (curio),  and  its 
priest  (flamen  curialis).     Vacancies  in  the  senate  were  filled 


306  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

by  appointment  of  the  king".  The  powers  of  the  primitive 
senate  are  not  readily  comprehended.  As  the  heads  of  their 
famihes  they  were  the  chief  men  of  the  state,  each  riding  his 
own  family,  slaves  and  clients.  Collectively  their  govern- 
mental functions  appear  very  limited,  except  in  the  matter  of 
providing  a  king,  yet  they  held  a  veto  on  changes  in  the  con- 
stitution of  the  state  proposed  to  the  assembly  by  the  king 
and  adopted  by  it.  Though  there  was  no  written  constitution, 
the  senate  in  a  negative  manner  by  its  veto  might  declare  what 
the  fundamental  law  was.  In  theory  the  king  was  absolute, 
yet  the  organization  of  society  was  such  that  despotic  powers 
were  denied  him.  The  citizens  were  by  no  means  slaves  to  the 
king,  but  rather  his  ec^uals,  from  whose  number  he  had  been 
chosen.  He  held  his  office  under  no  claim  of  divine  right 
but  of  regular  selection.  The  vigor  of  the  unwritten  consti- 
tution was  due  to  the  spirit  and  moral  influence  of  the  mono- 
gamous Roman  families,  and  the  need  of  the  king  for  the 
counsel  and  support  of  the  citizens  in  the  assembly  and  the 
senators  in  council.  The  king  had  his  subordinates  to  execute 
his  commands,  but  the  military  powder  of  the  state  rested  in 
the  body  of  citizens,  who  w^ere  soldiers  only  on  emergency, 
and  the  senate  might  veto  a  war  of  aggression.  Though  in 
theory  the  powers  of  the  senate  in  its  earliest  days  w-ere  ex- 
ceedingly limited,  the  influence  of  such  a  body  of  men  must 
always  have  been  great,  and  subsequent  history  demonstrates 
how  that  influence  developed  into  recognized  authority. 

In  dealing  with  the  earliest  constitution  of  Rome  we  are 
forced  to  rely  much  on  inferences  deduced  from  the  state  of 
society  at  later  periods,  when  we  have  a  clearer  and  more 
authentic  view  of  it,  and  on  traditions  passed  down  from 
earlier  times.  The  division  of  the  people  into  the  patrician 
families  w^ith  their  clients  and  slaves  and  plchs,  who  were  yet 
not  citizens  nor  slaves,  is  explained  on  the  theory  that  the 
patricians  were  of  the  stock  of  the  earliest  founders  of  the 
community  and  that  others,  brought  in  from  conquered  dis- 
tricts or  voluntarily  settling  in  the  city,  were  protected  bv  the 
state  though  given  no  share  in  public  affairs.  The  ranks  of 
the   plcbs  were   also   augmented   by   manumitted   slaves   and 


ROME  307 

clients  and  their  descendants,  who  became  detached  from  the 
households  of  their  patrons.  As  in  the  earliest  times  the 
warriors  were  taken  from  the  citizens  only,  the  numbers  of 
the  plebs,  who  were  allowed  to  have  families  and  acquire 
property,  increased  much  more  rapidly  than  those  of  the 
patrician  stock.  Though  in  our  day  great  stress  is  laid  on  the 
efficacy  of  written  constitutions  and  formal  legislative  enact- 
ments, the  early  history  of  Rome  exhibits  in  a  striking  man- 
ner how  accepted  principles  may  govern  effectually  without 
any  written  constitution  or  laws,  and  how  a  government  may 
be  in  form  and  theory  despotic,  yet  effectually  curbed  in  many 
ways.  The  real  living  law  is  that  which  is  generally  observed 
and  enforced,  rather  than  that  which,  though  promulgated  by 
the  recognized  law-making  power,  is  yet  disregarded  in  actual 
practice. 

The  rules  which  the  Romans  recognized  as  authoritative 
were  classified  under  the  heads  of  fas,  which  was  conceived 
to  be  the  laws  promulgated  by  the  gods,  jtis,  which  signified 
established  human  customs  and  regulations,  and  boni  mores, 
which  expressed  the  general  public  sentiment  with  reference 
to  personal  conduct.  Fas,  which  was  accepted  as  the  will  of 
the  gods,  regulated  religious  ceremonials,  which  constituted 
a  most  important  element  in  both  public  and  domestic  life. 
It  went  much  farther,  however,  and  furnished  precepts  re- 
garded as  binding,  not  merely  on  the  people  of  the  state  in 
their  intercourse  with  each  other,  but  on  all  mankind.  It 
forbade  war  without  the  prescribed  ceremonial,  through  which 
the  gods  were  supposed  to  be  consulted.  It  enjoined  faith  to 
be  kept  with  enemies,"  when  under  sanction  of  an  oath,  and 
hospitality  to  foreigners.  It  punished  murder ;  the  sale  of  a 
wife  by  her  husband;  the  resistance  by  children  of  the  author- 
ity of  their  parents ;  incestuous  connections ;  false  oaths  and 
broken  vows ;  and  the  displacement  of  boundaries  and  land- 
marks. All  these  were  regarded  as  offenses  against  the  sacred 
ordinances  <»f  the  gods.  For  minor  f)ffences  exj>iation  was 
,'dlowed.  but  for  the  graver  ones  the  heavy  penalty  of  excom- 
munication was  imposed.  The  outlaw — homo  saccr — was  an 
outcast  with  whom  it  was  pollution  to  associate,  who  could 


3o8  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

take  no  part  in  public  affairs,  civil  (ir  religions,  and  whom  any 
one  might  kill  with  impunity.  Jus  was  based  mainly  on  long 
established  customs,  recognized  as  binding,  and  in  the  early 
days  only  to  a  small  extent  on  rules  proposed  by  the  king  and 
adopted  by  tlie  people  in  the  assembly  of  the  curiae.  Boni 
mores  related  to  the  demeanor  and  obedience  of  inferiors  to 
superiors,  chastity,  fidelity  to  engagements  and  the  like,  and 
were  enforced  by  the  pater  faiuilias,  the  elders  of  the  gens  and 
the  king. 

With  the  early  Romans  marriage  was  a  solemn  religious 
duty.  The  happiness  of  the  dead  in  a  future  state  was  be- 
lieved to  depend  on  the  due  observance  of  funeral  obsequies 
and  other  rites  for  the  good  of  their  souls,  which  could  only 
be  performed  by  descendants  of  the  deceased.  The  choice  of 
the  man  was  limited  to  a  woman  with  whom  he  had  a  right 
of  intermarriage.  The  wife  of  a  patrician  must  be  either  the 
daughter  of  a  patrician  or  a  woman  of  an  allied  community. 
In  taking  her  as  his  wife  he  detached  her  from  her  family  and 
its  household  gods,  to  become  a  part  of  his  family  and  under 
the  hand  of  the  head  of  the  household.  This  must  be  done 
with  the  approval  of  the  gods,  consulted  through  auspicia. 
The  ceremony  was  a  religious  one,  conducted  by  the  high 
priest  in  presence  of  ten  witnesses  representing  the  ten  curiae 
of  the  bridegroom's  tribe,  and  was  called  confarreatio.  By 
this  ceremony  she  and  all  her  ])roperty  passed  in  uianuin, 
under  the  hand  of  the  head  of  her  husband's  home,  and  thence- 
forth she  and  all  that  came  with  her  were  his  property.  The 
religious  feeHngs  of  the  heads  of  Roman  families  were  such 
that  the  theory  of  the  despotic  rights  of  the  father  was  pro- 
ductive of  little  if  any  evil.  The  father  was  dependent  on 
the  son  for  those  religious  of^ces  which  were  so  highly  es- 
teemed, and  mutual  dependence  as  well  as  natural  affection 
seem  to  have  made  the  early  Roman  families  high  types  of 
domestic  circles.  In  case  of  the  unfortunate  failure  of  issue 
or  loss  of  all  sons,  threatening  the  extinction  of  the  family, 
the  father  might  provide  for  its  perpetuation  by  adrogation 
or  adoption.  By  the  former  the  pater  familias  of  another 
household  was  transferred  to  become  the  son  of  the  adrogator 


ROME  309 

and  thereby  permitted  his  own  family  to  be  nominally  ex- 
tinguished. This  could  only  be  done  with  the  approval  of 
the  pontiffs  and  the  sanction  of  the  curiae.  The  adrogatee 
and  all  his  family  and  property  passed  under  the  power  of 
the  adrogator.  In  case  of  the  adoption  of  the  son  of  another 
pater  familias  the  form  was  more  simple,  requiring  the  con- 
sent of  the  father  of  the  adopted  son.  The  plebs  contracted 
marriages  by  consent,  but  were  incapable  of  the  religious 
ceremony  of  confarreatio  with  its  legal  consequences,  nor 
were  they  allowed  to  perpetuate  their  families  by  adrogation 
and  probably  not  by  adoption. 

In  the  earliest  times  there  was  private  tenure  of  land,  but 
there  were  also  public  lands  belonging  to  the  state.  To  what 
extent  lands  were  held  in  common  by  the  clans,  if  at  all,  can- 
not be  stated.  The  plebs  were  allowed  to  acquire  and  hold 
land  as  well  as  the  patricians.  The  law  of  inheritance  gave 
the  property  of  the  deceased  to  his  children  and  widow 
equally,  sons  and  daughters  sharing  alike,  except  that  a  daugh- 
ter, married  and  thus  a  member  of  her  husband's  family,  had 
no  share.  This  equality  was  materially  modified  however  by 
the  guardianship  under  which  the  widow  and  unmarried 
daughters  passed,  exercised  by  their  nearest  male  relation ; 
thus  the  sons  became  guardians  of  their  mother  and  sisters. 
In  default  of  widow  and  children  the  inheritance  went  to  the 
gens.  The  succession  might  be  changed  by  a  testament,  exe- 
cuted in  the  assembly  of  the  curiae,  or  in  the  presence  of 
comrades  on  the  eve  of  battle.  Among  the  plebs  the  inheri- 
tance passed  to  the  children,  but  in  the  earliest  times  not  to 
collateral  relations,  and  they  were  without  legal  capacity  to 
make  a  will. 

In  the  earliest  days  money  was  not  in  use,  and  there  was 
hardly  such  a  thing  as  the  law  of  contracts  in  the  modern 
sense.  As  in  most  primitive  communities,  possession  and 
ownership  were  usually  concomitant,  and  for  invasion  of  his 
possession  the  owner  usually  asserted  his  rights  in  person. 
The  dividing  line  between  |)rivate  wrongs  and  public  offenses 
was  not  clearly  drawn.  The  tendency  was  to  confuse  them 
and  treat  all  matters  brought  before  the  judge  as  of  a  crinii- 


3IO  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

nal  character.  Nor  was  the  punishment  of  crime  exchisively 
the  province  of  the  king-  or  judge.  In  case  of  murder  it  was 
the  kinsman  of  the  person  murdered  who  avenged  his  death. 
So  too  the  husband  or  father  might  kill  wife  or  daughter  and 
her  paramour  caught  in  adultery  on  the  spot,  but  if  he  de- 
layed till  his  blood  cooled  he  could  then  proceed  only  in  his 
domestic  tribunal. 

The  early  procedure  was  simple :  the  accused  on  trial  for  a 
criminal  offence  or  the  parties  to  a  private  suit  came  before 
the  king  at  the  judgment  platform.  He  was  attended  by  his 
lictorcs  (messengers).  The  facts  were  ascertained  by  the 
confessions  of  parties  and  the  testimony  of  witnesses  with- 
out the  use  of  torture,  except  on  slaves.  Among  capital  of- 
fences were  treason,  violent  sedition,  parricide,  wilful  murder, 
sodomy,  violation  of  a  maiden,  arson,  perjury,  carrying  away 
the  harvest  by  witchcraft  and  unlawfully  cutting  the  corn  in 
the  sacred  fields  by  night.  The  king  might  hear  and  pro- 
nounce judgment  alone  or  on  consultation  with  advising  sena- 
tors, or  might  depute  the  power  to  others.  There  wer? 
trackers  of  murder,  quaestorcs  parricidii,  whose  duty  it  was 
to  arrest  murderers.  The  mode  of  inflicting  the  death  sen- 
tence was  by  throwing"  down  from  the  capitol  hill,  hanging, 
burning  or  drowning.  Pardon  could  only  be  granted  by  the 
people  on  an  appeal  to  them,  which  the  king  was  at  liberty 
to  allow  or  refuse.  The  culprit's  life  was  spared,  if  on  his 
way  to  execution  he  accidentally  met  one  of  the  vestal  virgins. 
For  minor  offences  fines  of  cattle  were  imposed  or  the  culprit 
was  scourged.  For  serious  injuries  the  wronged  party  was 
entitled  to  retaliation,  eye  for  eye,  etc.  For  thefts  and  other 
injuries  to  person  or  property  compensation  was  usually 
awarded. 

Under  Servius  Tullius  important  changes  were  made  in  the 
organization  of  the  state.  These,  though  induced  mainly  by 
military  considerations,  had  a  most  important  influence  in 
later  years  on  the  civil  institutions,  and  on  the  relations  of 
the  plchs  and  patricians.  A  census  was  taken,  registering  the 
citizens  with  the  numbers  in  their  families,  and  showing  the 
value  of  their  lands  and  holdings.     This  census  was  revised 


ROME  311 

periodically.  Transfers  of  lands  to  be  recognized  were  re- 
quired to  be  made  publicly  under  certain  forms  or  by  sur- 
render in  a  court  before  the  supreme  magistrate.  This  form 
of  conveyance  was  called  mancipium  and  continued  in  use  till 
the  time  of  Justinian.  All  freeholders  from  seventeen  to 
sixty  years  old,  whether  patricians  or  plehs,  were  equally 
liable  to  military  duty  and  were  divided  into  centuries,  classes 
and  tribes  without  reference  to  the  old  divisions.  The  cen- 
tury of  one  hundred"  men  became  the  unit,  and  the  centuries 
were  arranged  in  classes,  the  front  rank  including  the  wealth- 
ier and  therefore  best  armed  class,  the  second  and  third  of  the 
grades  below  and  the  fourth  and  fifth  made  up  of  the  poorer 
citizens,  who  served  as  light  armed  troops.  The  cavalry  was 
similarly  dealt  with  and  drawn  from  the  most  opulent  citi- 
zens. Old  men,  unmarried  women  and  boys  holding  land, 
were  required  to  contribute  equipments  and  fodder  for  cer- 
tain ones.  Non-freeholders  had  to  supply  workmen  and 
musicians  for  the  army,  as  well  as  substitutes,  who  marched 
with  the  army. and  took  the  places  made  vacant  in  the  ranks 
by  illness,  death  or  other  cause.  For  the  purpose  of  making 
the  levy  the  city  and  its  suburbs  were  divided  into  four  parts, 
superseding  the  old  triple  division.  Each  quarter  contributed 
equally  one-fourth  part  of  the  whole  and  of  each  of  its  mili- 
tary subdivisions,  so  that  each  legion  and  century  was  made 
up  from  all  four  parts.  The  whole  military  population  was 
divided  into  a  first  and  second  levy,  the  first  or  juniors  in- 
cluding those  from  the  seventeenth  to  the  forty-sixth  year, 
who  were  usually  the  active  force,  while  the  seniors  acted  as 
home  guards.  The  military  unit  was  the  legion  of  3,000  men 
in  six  ranks,  to  which  were  attached  1,200  unarmed  velitcs. 
The  normal  force  consisted  of  16,800  men  in  the  infantry  and 
1,800  horse.  From  the  time  of  this  reorganization  it  was  the 
centuries  whose  consent  the  king  asked  before  waging  a  war 
of  aggression,  instead  of  the  assembled  patricians,  and  the 
centuries  who  authorized  the  testaments  of  soldiers  before 
going  into  battle.  Political  power  thus  came  to  be  exercised 
by  the  plrhs  as  a  natural  sequence  of  their  assuming  the  bur- 
den of   military  service.      At  the  time  of  these  changes  the 


312  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

population  and  territory  of  the  city  had  been  increased,  and 
inchided  probably  not  less  than  100,000  people.  From  the 
earliest  days  the  leading  characteristic  of  the  Roman  state 
was  its  military  spirit  and  superior  organization  for  war. 
Another  regulation  of  Servius,  which  continued  in  effect  till 
the  time  of  Justinian,  was  that  which  prescribed  the  mode  of 
transferring  the  title  to  lands,  houses,  rights  of  way,  aque- 
ducts, slaves  and  domestic  beasts  of  burden,  which  were  styled 
res  mancipi.  The  transfer  was  required  to  be  made  in  pres- 
ence of  five  citizens  as  witnesses  and  a  libripcns  holding  a 
pair  of  scales.  The  vendee,  with  one  hand  on  the  thing  pur- 
chased or  a  symbol  of  it,  declared  it  his  by  purchase  with  a 
piece  of  money  which  he  held  in  the  other  hand,  and  with 
which  he  struck  the  scales  and  then  handed  it  to  the  seller  as 
symbolical  of  the  price  paid.  The  actual  weighing  out  of 
the  copper  before  coined  money  was  used,  or  payment  of  the 
whole  price  in  later  times,  does  not  seem  to  have  required  the 
presence  of  witnesses.  This  mode  of  transfer,  called  manci- 
pation, was  primarily  established  in  connection  with  the 
census,  in  order  that  the  ownership  of  property  might  be  defi- 
nitely established  and  the  classification  of  citizens  based  on  it 
secured  against  errors.  Other  forms  of  property  classed  as 
res  nee  mancipi  could  be  sold  and  title  given  by  delivery,  but 
a  full  title  to  res  mancipi  could  only  be  given  by  this  formal 
transfer  or  surrender  in  court.  A  similar  formality  was  soon 
adapted  to  other  forms  of  contract  including  emancipation, 
coemption  and  plebian  alienation  mortis  causa. 

While  the  date  of  the  foundation  of  Rome  is  generally 
fixed  about  753  B.C.  there  seems  but  little  on  which  to  base 
any  definite  statement  about  it.  The  kingly  form  of  govern- 
ment continued  till  the  reign  of  Tarquin  the  Proud,  who  was 
expelled  with  all  his  clan  by  the  Roman  people  because  of  his 
tyrannies.  This  occurred  about  the  close  of  the  sixth  centurv 
B.C.  The  wars  waged  by  him  to  recover  the  throne  ended 
with  the  battle  of  Lake  Regillus,  which  is  said  to  have  occur- 
red in  the  year  497  B.C.  and  to  be  the  first  authentic  date  in 
Roman  history.  However  this  may  be,  the  fact  of  expulsion 
is  undoubted,  and  that  the  peojjle  had  become  so  thoroughlv 


ROME  313 

disgusted  with  kingly  rule  that  they  swore  that  no  king  should 
ever  again  rule  in  Rome.  The  title  of  king  was  retained  for 
the  high  priest,  rex  sacrorum,  who  succeeded  only  to  some  of 
the  religious  functions  of  the  former  kings.  In  place  of  a 
single  king  two  consuls  were  chosen,  to  hold  office  jointly  for 
a  single  year.  They  were  elected  by  the  citizens  in  the  as- 
sembly, comitia,  of  the  centuries  from  among  the  patricians, 
formally  invested  with  authority  by  a  vote  of  the  curiae  and 
confirmed  by  the  senate.  Under  the  new  constitution  laws 
were  first  proposed  to  the  comitia  of  the  centuries,  and,  if 
adopted,  were  in  like  manner  approved  by  the  curiae  and  the 
senate.  The  consuls  succeeded  to  the  temporal  power  of  the 
kings,  and  each  of  them  possessed  these  rights  in  full  and 
became  a  check  on  the  other.  While  the  plebeians  thus  be- 
came admitted  to  a  share  in  naming  the  consuls  and  making 
the  laws,  the  actual  direction  of  affairs  was  still  in  the  hands 
of  the  patricians,  who  presided  in  the  comitia,  and  from  whose 
ranks  the  consuls  must  be  taken.  The  right  of  appeal  from 
capital  sentences  and  sentences  to  corporal  punishment  other- 
wise than  by  martial  law  was  no  longer  left  optional,  as  under 
the  kings,  but  was  made  absolute.  While  the  consuls  suc- 
ceeded to  the  judicial  powers  of  the  kings,  they  were  subject 
to  restrictions.  Causes  were  commenced  before  the  consuls, 
but  in  civil  cases  and  murders  prosecuted  by  the  quaestors  the 
consul  was  required  to  commit  to  trial  before  deputies  ap- 
pointed l>y  him. 

The  consuls  did  not  succeed  to  the  power  of  nominating 
the  priests,  l)ut  the  college  of  priests  filled  vacancies  in  their 
own  ranks  and  also  named  the  vestals  and  single  priests  and 
named  a  president,  the  Pontifex  inaximus.  In  extraordinary 
emergencies  either  consul  had  power  to  name  a  dictator,  who 
exercised  the  full  power  of  both  consuls,  but  his  powers 
ceased  at  the  end  of  the  consulate  and  could  not  continue  for 
a  period  of  over  six  months.  In  war  he  commanded  the 
infantry  and  was  bound  to  name  a  master  of  the  horse,  who 
held  for  a  like  term. 

The  king,  holding  for  life,  had  been  above  accountabib't\' 
for  any  of  his  acts,  but  the  consuls  after  the  expiration  of 


314  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

their  terms  of  office  were  subject  to  trial  for  olYcnccs  com- 
mitted against  the  law  as  other  citizens.  The  old  privilct^c  of 
the  king,  to  have  his  fields  cultivated  by  task  work  of  the 
citizens  and  protected  dwellers  in  the  city,  ceased  on  tho 
termination  of  life  tenure.  With  the  change  in  the  constitu- 
tion the  power  of  the  citizens  enrolled  for  military  service  was 
further  increased,  and  the  asseml)ly  of  the  centuries  became 
the  most  potent  political  body  in  the  state.  A  change  also 
took  place  in  the  curiae,  which  thereafter  included  all  free- 
men of  the  city,  slaves  and  citizens  of  other  communities  who 
stood  in  the  situation  of  guest  of  the  city  being  the  only 
classes  excluded. 

The  senate  retained  in  the  main  its  former  powers  and 
composition,  but  was  no  longer  made  up  exclusively  from  the 
patrician  order.  Plebeians  were  admitted  under  the  name 
conscripti,  not  however  with  full  rights  as  senators.  The 
consuls  while  in  office  had  no  vote  in  the  senate.  They  filled 
vacancies  whether  from  among  the  patrcs  or  the  plebeian  con- 
scripti, the  whole  number  of  both  still  remaining  300.  It 
became  the  custom  to  revise  the  roll  on  taking  the  census, 
which  occurred  every  fourth  year.  The  patricians  still  re- 
tained the  exclusive  eligibility  to  the  consulate  and  civil 
magistracies,  as  well  as  the  priesthood,  and  the  privilege  of 
joint  use  of  the  public  pastures.  The  practice,  commonly  fol- 
lowed under  the  regal  constitution,  of  consulting  the  senate  on 
matters  to  be  proposed  in  the  assembly,  became  a  settled  cus- 
tom, and  the  senate  also  gained  a  most  important  power  b}^ 
taking  away  from  the  consuls  the  control  of  the  public  treas- 
ury and  putting  it  in  charge  of  two  subordinate  magistrates 
nominated  by  the  consuls.  The  expenditure  of  the  public 
moneys  could  only  be  made  with  the  consent  of  the  senate. 
On  the  whole  the  position  of  the  senate  was  strengthened  at 
the  expense  of  the  executive  head,  but  the  plebeians  also  gained 
advantages.  The  development  should  not  be  looked  at  from 
the  narrow  standpoint  of  advantage  to  one  class  or  the  other. 
Rome  was  a  growing  power,  and  the  elements  of  which  it 
was  composed  were  asserting  their  strength,  not  merely  in 
the  interests  of  their  respective  classes,  but  for  the  advance- 


ROME  315 

ment  of  the  wIkiIc.  Among  the  regulations  favorable  to  the 
poor  were  reductions  of  the  port  dues  on  grain  and  interven- 
tion of  the  state  to  secure  corn  and  salt  for  the  multitude  at 
reasonable  prices  through  state  monopoly.  A  singular  regu- 
lation with  reference  to  fines  was  that  which  prohibited  a 
magistrate  from  fining  the  same  man  on  the  same  day  to 
the  extent  of  more  than  two  sheep  or  thirty  oxen  without 
granting  leave  to  appeal ;  thus  apparently  placing  the  poor 
shepherd  and  the  rich  herdsman  somewhat  on  an  equality 
in  this  particular. 

In  the  collection  and  disposition  of  the  public  funds  the 
system  of  farming  the  revenue  was  adopted,  by  which  a  col- 
lector payed  a  fixed  sum  to  the  state  and  collected  in  his  own 
interest  from  the  people.  Public  works  were  also  carried  on 
through  contractors,  who  made  large  profits  on  the  labor 
employed.  The  use  of  the  public  lands  for  grazing  purposes 
\vas  claimed  by  the  patricians  as  their  right,  to  a  share  in 
w  hich  however  some  wealthy  plebeians  were  admitted.  This 
had  been  subject  to  the  payment  of  a  moderate  tax,  but  the  col- 
lection of  this  by  the  patrician  quaestors  was  gradually  omit- 
ted. When  new  domains  were  acquired,  it  had  been  the  cus- 
tom to  assign  the  tillable  land  to  the  poorer  people,  retaining 
the  rest  for  pasture.  A  system  grew  up  of  allowing  an  oc- 
cupant to  take  possession  for  an  undefined  term,  subject  to 
the  payment  of  one-tenth  the  grain  and  one-fifth  the  oil  and 
wine.  This  system  of  occupation  was  allowed  indefinite  ex- 
tension, and  naturally  inured  entirely  to  the  benefit  of  the 
ruling  classes,  and  the  collection  of  the  state's  share  was  also 
soon  neglected.  The  wealthy  citizens  became  farmers  on  a 
large  scale.  Small  land  owners,  who  were  heavily  burdened 
with  taxation,  fell  in  debt  and  under  the  power  of  their  credi- 
tors, which  was  greatly  abused.  On  their  return  from  a  suc- 
cessful war  under  the  dictatorship  of  Marcus  Valerius  the 
poor  landholders,  who  constituted  the  strength  of  the  army, 
demanded  mitigation  of  the  rigor  with  which  creditors  en- 
forced their  demands  and  other  reforms  in  the  government, 
and  refused  to  disband  until  their  rights  were  secured.  The 
senate  at  first  refused.     The  army   under  leadership  of  tlic 


3i6  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

military  tribunes  went  into  camp  between  the  Tiber  iind  the 
Aino  and  threatened  to  estabHsh  there  a  city  of  their  own. 
An  agreement  was  finally  made  granting  temporary  relief  to 
the  debtors  and  providing  for  some  of  the  poor  farmers  in 
colonies  that  were  established,  but  the  most  important  con- 
cession was  that  which  placed  by  the  side  of  the  two  patrician 
consuls  two  plebeian  tribunes,  elected  l)y  the  plebeians  assembled 
in  curies.  The  tribunes  were  given  the  power  to  nullify  the 
commands  of  the  consuls  by  a  protest  properly  tendered.  The 
tribunes  also  were  given  jurisdiction  to  try  and  determine 
criminal  causes,  and  in  case  of  an  appeal  from  their  decision 
the  right  to  defend  it  before  the  people.  They  also  had  the 
important  power  of  assembling  and  addressing  the  people  and 
submitting  resolutions  for  their  adoption.  The  tribunes  could 
not  prevent  the  other  magistrates  from  pronouncing  sentence, 
the  senate  from  adopting  a  decree,  or  the  centuries  from  giv- 
ing their  votes,  but  they  could  discharge  the  debtor  from  ar- 
rest and  exempt  the  citizen  from  enforced  military  service. 
That  the  aid  of  the  tribunes  might  be  always  accessible,  they 
were  prohibited  from  spending  a  night  out  of  the  city  and 
required  to  leave  their  doors  open  day  and  night.  They  could 
summon  any  citizen  before  them  for  trial,  even  a  consul  in 
office.  Their  process  was  served  by  two  acdiles  appointed  to 
attend  them,  and  they  were  aided  by  ten  men  for  lawsuits, 
whose  precise  powers  cannot  be  stated.  An  appeal  from  the 
judgment  of  a  tribune  went,  not  to  the  whole  body  of  citi- 
zens, but  to  the  whole  body  of  plebeians,  who  met  and  voted 
by  curies.  Only  against  a  dictator  were  the  tribunes  power- 
less to  interpose.  As  might  readily  be  foreseen  this  arrange- 
ment invited  conflict  of  authority  and  tended  to  violence  when 
partisan  spirit  w^as  high.  The  tribune  Gnaeus  Gemicius,  who 
had  called  the  two  consuls  to  account,  was  found  murdered 
in  his  bed  on  the  day  fixed  for  the  impeachment.  This  cir- 
cumstance led  to  the  passage  of  the  Publilian  law,  which 
provided  for  a  plebeian  assembly  of  tribes  and  the  plebiscitum. 
The  plchs  had  theretofore  adopted  resolutions  bv  curies,  vot- 
ing man  by  man  without  distinction  of  estate,  and,  as  the 
clients  of  the  patricians  were  entitled  to  vote  in  these,   the 


ROME  317 

influence  of  the  patrician  clans  was  often  controlling.  The 
Roman  territory  was  now  divided  into  twenty-one  districts 
designated  as  tribes,  but  with  fixed  territorial  boundaries.  In 
the  tribes  the  voters  were  the  plebeian  freeholders  only,  each 
of  whom  had  one  vote,  no  matter  what  the  extent  of  his  hold- 
ing. Thus  the  patricians  and  residents  who  were  not  free- 
holders were  excluded.  The  enactments  of  these  meetings, 
when  previously  approved  by  the  senate,  had  the  force  of  law 
and  were  of  equal  validity  with  those  adopted  by  the  centuries. 
After  much  contention  and  many  proposals  of  reform,  about 
the  year  454  B.C.  a  Decemvirate  was  established  in  place  of 
the  consuls,  to  which  plebeians  as  well  as  patricians  were  eligi- 
ble, and  the  tribunate  was  suspended  for  the  time.  An  em- 
bassy was  sent  to  Greece  to  obtain  the  laws  of  Solon,  and 
after  their  return  the  decemvirs  were  chosen,  all  of  whom 
were  patricians.  The  purpose  of  the  decemvirate  was  to  es- 
tablish a  written  code  of  laws  for  the  protection  of  the  pcojile 
against  arbitrary  and  discretionary  power.  As  this  code  was 
not  completed  within  the  term  of  the  first  members,  a  second 
set  was  chosen,  including  some  plebeians.  The  product  of  the 
labors  of  these  ofiicials  was  the  first  ten  of  the  famed  XT! 
tables  of  the  Roman  law.  Others  were  chosen  the  following 
year,  who  added  the  other  two,  all  of  which  were  dulv  ratified 
by  the  people  and  engraved  on  tables  of  copper  and  affixed 
in  the  Forum  to  the  rostra  in  front  of  the  senate  house.  This 
famous  code  is  preserved  to  us  only  in  fragments,  gatherer' 
here  and  there  from  the  writings  of  men  of  later  times.  A 
summary  of  them  is  given  in  the  Appendix. 

How  much  or  how  important  the  omitted  parts  of  tin's 
famous  C(jdc  may  be  it  is  impossible  to  tell,  but  enough  is 
preserved  to  show  the  crude  and  barbarous  customs  of  the 
time  and  also  the  earnest  effort  for  better  and  more  humane 
regulations.  For  punishments,  death,  bodilv  injury  and  fines, 
for  the  collection  of  debts  the  person  of  the  debtor  was  seized, 
and  he  stood  on  the  level  of  a  criminal.  Slavery  was  recog- 
nized, yet  at  the  same  time  among  citizens  special  privileges 
were  prohibited.  Publicity  and  impartialitv  in  all  trials  were 
enjoined.      The    truth    was    to   be    ascertained    from    witness 


3i8  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

and  without  torture.  There  is  a  tinge  of  superstition  here  and 
there  but  Httle  sanction  for  priestly  tyranny.  Taken  as  a 
whole  it  exhibits  the  germs  of  the  system  of  written  laws, 
which  has  since  prevailed  throughout  Europe,  commingled 
with  the  crudities  and  barbarities  of  a  small  warlike  commun- 
ity, constantly  struggling  with  its  neighbors  for  existence. 
The  decemvirate,  having  completed  its  labors  in  the  enactment 
of  the  code,  was  not  gotten  rid  of  without  strife  and  turmoil. 
Consuls  and  tribunes  were  again  chosen,  and  it  was  decreed 
that  thereafter  every  magistrate,  even  a  dictator,  should  allow 
an  appeal  in  capital  cases.  The  tribunes  were  admitted  to 
share  in  the  discussions  of  the  senate,  and  any  resolution  of 
the  senate  or  assembly  might  be  arrested  by  them.  Soon  after 
445  B.C.  the  Canuleian  law  broke  down  the  strict  social  di- 
vision, which  had  been  maintained  between  the  orders,  and 
declared  marriages  between  patricians  and  plebeians  lawful  as 
true  Roman  marriages  and  that  the  children  should  take  the 
rank  of  the  father.  It  was  further  provided  that  in  place  of 
the  consuls  six  military  tribunes  should  be  chosen  with  the 
powers  and  for  the  terms  of  consuls.  As  under  the  military 
system  all  citizens  liable  to  military  service  were  eligible  to 
military  commands,  this  in  effect  opened  the  consular  office 
to  all  plebeians  liable  to  service.  This  was  not  a  permanent 
arrangement,  but  year  by  year  there  was  a  struggle  to  de- 
termine whether  consuls  or  tribunes  should  be  chosen,  usually 
resulting  in  favor  of  the  latter.  In  435  B.C.  the  making  up 
of  the  census,  which  had  theretofore  been  the  province  of  the 
consuls,  was  entrusted  to  two  censors,  nominated  from  the 
patricians  by  the  centuries  for  a  period  of  not  more  than 
eighteen  months.  To  them  was  confided  the  power  to  fill 
vacancies  in  the  senate  and  even  to  remove  the  names  of  un- 
worthy ones  from  the  lists  of  senators  and  cquitcs.  There 
were  four  quaestors  in  charge  of  the  public  money,  two  for 
the  city  nominated  by  the  consuls,  and  two  for  the  armv  by 
the  tribes,  but  all  taken  from  the  patricians.  In  421  B.C.  the 
nomination  of  the  city  quaestors  passed  to  the  assemblv  of 
the  tribes,  the  consul  merely  superintending  the  election,  and 
plebeians  became  eligible.     Granting  eligibility  was  not  equiv- 


ROME  319 

alent  to  conferring  the  office,  and  the  patricians  still  con- 
tinned  to  fill  most  of  the  magistracies.  The  wealthy  plebeians 
struggled  to  advance  their  own  political  privileges  quite  as 
much  as  to  better  the  condition  of  the  poor.  There  w^ere  not 
only  patricians  and  plchs,  but  among  the  plchs  there  were 
the  freeholders  and  the  prolctarii,  and  beneath  all  the  slaves, 
who  were  without  political  rights  and  for  whose  welfare  as 
a  class  no  party  ever  labored.  During  the  struggle  between 
patricians  and  plel^eians  the  division  was  not  so  much  between 
rich  and  poor  or  between  freeholder  and  non-freeholder,  as 
between  patrician  privilege  on  the  one  hand  and  plebeian  free- 
holders on  the  other,  but  the  plebeian  leaders  gave  some  heed 
to  the  cries  for  relief  coming  from  the  small  farmers  and 
laborers.  In  378  B.C.  the  tribunes  Gains  Licinius  and  Lucius 
Sextius  submitted  a  proposal,  first  to  abolish  the  consular 
tribunate  and  to  thenceforth  require  that  at  least  one  consul 
should  be  a  plelieian;  second  to  open  to  the  plebeians  admission 
to  the  priestly  college  of  custodians  of  oracles  and  to  increase 
the  membership  to  ten ;  third  to  allow  no  citizen  to  maintain 
on  the  common  pasture  more  than  one  hundred  oxen  and  five 
hundred  sheep,  or  to  hold  more  than  five  hundred  jugcra 
(about  three  hundred  acres)  of  the  domain  lands;  fourth  to 
oblige  landlords  to  employ  in  the  fields  free  laborers  in  pro- 
portion to  their  slaves;  fifth  that  debtors  should  be  allowed  a 
deduction  of  the  interest  which  had  been  paid  from  the  prin- 
cipal of  their  debts  and  terms  for  the  payment  of  the  balance. 
After  eleven  years  the  senate  yielded  and  these  proposals  were 
adopted.  Following  these  reforms  the  judicial  |)ower  was 
detached  from  the  consuls  and  vested  in  a  special  officer,  the 
praetor,  and  the  supervision  of  the  markets,  the  police  duties 
connected  therewith  and  the  celebration  of  the  city  festival. 
were  conferred  on  tw(»  newly  created  acdilcs,  called  bv  wav 
of  distinction  from  the  ])lebeian  acdilcs,  acdilcs  ciiritlcs.  These 
offices  were  soon  opened  to  plchs  and  patricians  altcrnatelv, 
and  witbin  a  few  years  plchs  were  made  eligil)le  to  the  dicta- 
torship and  office  of  master  of  the  horse  and  to  ])oth  censor- 
ships, and  tlie  patricians  by  law  excluded  from  one  censor- 
--liip.     Tbrnngli  these  \arious  offices  the  plchs  not  onl\'  gained 


320  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

admission  to  the  senate,  but  those  who  had  filled  the  offices 
of  consul,  praetor  and  ciirnle  aedile  were  summoned  to  s^ive 
their  opinions  on  matters  before  the  senate  in  the  order  named, 
whether  plcbs  or  patricians,  and  the  other  senators  merely 
voted  on  the  division.  Afterward  the  priestly  collej^es  of 
pontificcs  and  augurs  were  opened  to  the  plcbs.  The  senate 
lost  its  veto  power  on  laws  passed  by  the  assembly,  and  at 
length  it  was  provided  that  decrees  of  the  plcbs  should  ha\c 
equal  force  with  those  of  the  whole  people.  This  happened 
about  286  B.C.  and  witnessed  the  termination  of  the  main 
contention  between  plebs  and  patricians.  It  had  previously 
been  enacted  (339  B.C.)  that  the  senate  should  give  its  sanc- 
tion to  all  laws  before  submission  to  the  people,  which  in  a 
brief  time  practically  deprived  the  senate  of  its  veto. 

The  Roman  government  as  thus  constituted,  and  as  it  con- 
tinued without  substantial  change  till  the  time  of  the  Caesars, 
vested  the  law-making  power  in  three  popular  bodies,  cither 
one  of  which  exercised  its  powers  without  action  by  the  other, 
and  each  of  which  included  in  its  membership  a  large  propor- 
tion of  the  members  of  the  other  bodies.  These  were  the 
couiitia  of  the  centuries  which  corresponded  with  the  soldier\- 
acting  in  their  civil  capacity,  the  conciliuiu  plcbis,  made  up  of 
the  whole  body  of  the  plcbs,  voting  by  tribes,  and  the  coiititia 
tributa  of  the  whole  body  of  the  people,  also  voting  by  triljcb. 
The  membership  of  the  coniitia  of  the  centuries  was  based  on 
a  property  cjualification,  that  of  the  other  bodies  was  nut. 
This  body  at  first  could  be  convened  and  presided  over  onlv 
by  a  consul,  but  afterward  the  censors  had  power  to  convoke 
it  for  matters  relating  to  the  census  and  the  praetor  for  state 
trials.  The  procedure  in  the  passage  of  a  law  by  the  couiitia 
of  the  centuries  by  which  the  XII  tables  were  enacted  was, 
first  publication  of  the  proposed  law  two  weeks  before  the  da\' 
appointed  for  the  vote,  during  which  time  meetings  were 
sometimes  held  for  its  discussion;  second,  on  the  appointed 
day  the  anspicia  were  taken  by  the  presiding  magistrate,  as- 
sisted by  an  augur  which,  if  favorable,  were  followed  bv  sum- 
moning the  peoi)le  by  blast  of  the  trumjjet  to  attend  praver 
and  sacrifice  ofifered  by  the  president,  pontiffs  and  augurs.     A 


ROME  321 

final  discussion  might  then  follow,  at  the  conclusion  of  which 
the  citizens  marched  to  the  Campus  Martins  where  the  call 
was  read  and,  if  no  portent  from  heaven  interveneil,  the 
question  was  then  put,  "Is  it  your  pleasure  Quiritcs  to  hold 
this  as  law."  The  vote  was  taken  by  centuries,  those  of  the 
knights  and  freeholders  of  full  valuation  being  taken  lirst. 
If  these  were  unanimous  the  vote  went  no  farther,  as  they 
constituted  a  majority.  Prior  to  the  Publilian  law  the  con- 
sent of  the  senate  was  still  necessary,  but  afterward  it  was 
not.  In  the  concilium  plchis  it  was  not  necessary  to  consult 
the  gods  by  taking  the  auspicia.  It  could  be  convened  and 
presided  over  by  a  tribune  or  an  ardilc,  and  its  resolutions  re- 
quired no  confirmation  l)y  the  senate. 

The  comitia  tribnta  was  convened  Ijy  a  patrician  magistrate, 
and  before  it  could  proceed  the  auspicia  had  to  be  taken  and  its 
enactments  required  confirmation  by  the  senate.  When  so 
confirmed  they  bound  the  whole  people,  while  those  of  the 
conciliuni  plehis  bound  plcbs  only  until  after  the  Hortensian 
law.  The  struggle  of  the  classes,  through  which  the  govern- 
mental system  was  evolved,  was  contemporaneous  with  the 
struggle  with  external  foes  through  which  the  number  of  the 
people,  the  possessions  and  power  of  the  state  steadily  ad- 
vanced. b>om  a  kingly  government  of  a  small  community, 
based  on  the  idea  of  absolute  paternal  authority,  a  populous 
state  was  formed  with  the  power  of  making  laws  definitel}' 
lodged  in  the  mass  of  the  people;  with  the  idea  of  written 
law  to  settle  private  rights  and  direct  the  action  of  officials 
clearly  comprehended  and  adhered  to,  and  with  a  distribution 
of  powers  among  executive,  administrative  and  judicial  ofti- 
cers  designed  to  render  one  a  check  on  another.  Publicitv  in 
trials  and  the  right  of  appeal  were  shields  against  the  arbi- 
trary exercise  of  power;  but  more  than  this  the  brief  terms  of 
officers,  in  whom  the  powers  most  subject  to  alnise  were  con- 
fided, made  systematic  tyranny  impossible,  though  it  could 
not  prevent  instances  of  it.  That  this  securitv  might  not  bo 
impaired  by  successive  elections,  it  was  ordained  342  B.C., 
that  the  same  person  should  not  again  administer  the  office 
until  after  an  interval  of  ten  vears.     This  rule  was  not  ri-jidlv 


322  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

enforced,    however,    but    in    extraordinary    emergencies    was 
disregarded. 

The  long  struggle  between  classes  resulted  in  overthrowing 
the  exclusive  privileges  of  the  patricians  and  in  wresting  the 
power  to  make  laws  from  the  representatives  of  that  order, 
but  instead  of  weakening  the  influence  of  the  senate,  it  greatly 
strengthened  it.  A  senate  made  up  of  the  heads  of  patrician 
houses  only  would,  in  a  state  rapidly  increasing  in  population 
from  the  elements  absorbed  by  the  plebeians,  not  only  have 
become  less  representative  and  therefore  less  influential,  but 
would  inevitably  have  lost  its  vigor  by  reason  of  its  ex- 
clusiveness.  The  opening  of  the  senatorial  list,  not  only  to 
plebeians  who  were  elected  to  the  principal  offices,  but  also 
to  such  citizens  of  distinction  as  the  censors  might  name, 
made  of  the  senate  a  body  which  included  the  most  vigorous 
and  influential  men  to  be  found  in  the  state.  Distinction  in 
public  service,  as  well  as  family  and  wealth,  gave  access  to 
a  seat  in  it.  It  was  the  only  select  political  body  in  which 
affairs  of  state  were  discussed  and  policies  formulated.  Sub- 
stantially all  important  public  measures,  aside  from  those 
which  were  the  subject  of  dispute  between  patricians  and 
plehs,  were  first  aired  and  formulated  in  the  Senate.  It  was 
the  senate  that  proposed  general  policies  for  the  advancement 
of  the  power  of  Rome.  It  supervised  the  administration  of 
affairs  at  home  and  in  the  colonies  and  subject  communities. 
It  determined  all  questions  relating  to  war,  peace,  alliances,  the 
founding  of  colonies,  the  allotment  of  lands,  the  erection  of 
buildings  and  the  system  of  finance.  It  issued  annually  gen- 
eral instructions  to  the  magistrates,  fixing  the  number  of 
troops  and  amount  of  money  at  the  disposal  of  each.  The 
treasurers  could  make  no  payment  to  a  magistrate  other  than 
a  consul  except  on  the  order  of  the  senate.  Even  the  power 
of  the  tribunes  was  finally  turned  to  strengthen  the  position 
of  the  senate,  after  they  were  admitted  to  seats  in  it  and  to 
take  part  in  its  deliberations.  Though  the  senate  was  not 
strictly  an  elective  body,  and  though  its  members  continued 
for  life,  its  ranks  were  constantly  recnu'ted  from  consuls, 
praetors,    aediles    and    other   magistrates,    whosi^    merits    had 


ROME  323 

been  recognized  by  the  people,  and  who  took  their  seats  by 
virtue  of  that  recognition.  The  senate  under  the  kings  was 
an  assembly  of  elders,  whom  the  kings  were  accustomed  to 
consult  rather  for  the  inherent  value  of  their  counsel  than  on 
account  of  any  obligation  to  follow  it,  and  though  we  no- 
where find  any  enactment  formally  conferring  powers  on  the 
senate  after  the  expulsion  of  the  Tarquins,  it  little  by  little 
assumed  and  exercised,  as  its  prerogatives,  those  powers  which 
were  not  lodged  elsewhere.  The  people  were  its  superiors  so 
far  as  the  power  to  pass  laws  was  concerned,  but  the  field 
actually  covered  by  their  enactments  was  narrow  as  compared 
with  the  vast  range  of  subjects  of  which  the  senate  took  cog- 
nizance. Even  where  a  law  of  the  people  existed,  the  senate 
sometimes  swept  it  aside  for  the  time  being,  if  it  stood  in  its 
way.  Thus  the  political  head  of  Rome  from  the  end  of  the 
monarchy  till  the  establishment  of  the  empire  was  the  senate. 
Under  its  guidance  the  leadership  of  Rome  was  first  extended 
over  Latium,  then  step  by  step  over  Italy  and  afterward  over 
all  the  countries  comprising  its  vast  empire. 

The  struggles  of  Rome  with  the  other  Latin  communities 
began  in  its  infancy,  when  it  was  not  marked  out  as  first  in 
power.  In  time  it  conquered  Alba,  which  had  theretofore 
been  the  chief  town  of  the  Latins.  The  earliest  union  of 
other  Latin  communities  with  Rome  was  not  as  subjects  nor 
as  an  integral  part  of  a  single  state,  but  as  allies  on  something 
like  equal  terms,  and  at  length  with  the  confederated  Latins  as 
one  party  to  the  compact  and  Rome  as  the  other.  The  citi- 
zens of  each  community  were  accorded  equality  of  right  to 
acquire  land  and  chattels,  to  trade  and  marry  in  any  other. 
This  relation,  formed  during  the  existence  of  the  monarchy, 
continued  under  the  republic.  With  the  growth  of  Rome  the 
relative  importance  of  the  smaller  communities  diminished  and 
all  leadership  centered  in  Rome,  which  gathered  to  itself  the 
urban  elements,  the  trades  and  industries  which  naturally 
centered  in  a  city.  The  limits  of  the  city  were  extended  as 
a  necessary  consequence  of  its  increase  in  population,  and 
the  number  of  tribes  increased  from  four  covering  the  ancient 
wards  of  the  city,  to  twenty-one  spreading  over  rural  districts. 


324  EVOLUTION    OF    GOVERNMENTS    AND    EAWS 

By  the  terms  of  the  compact  between  the  confederacy  and 
Rome  they  shared  equally  in  lands  ac(|uired  by  conciuest,  and 
thus  the  boundaries  of  each  were  contenipuraneously  extended, 
but  about  384  B.C.  the  limits  of  the  confederacy,  which  then 
included  thirty  voting  members,  were  closed,  and  a  policy, 
thereafter  steadily  pursued,  was  inaugurated,  by  which  new 
communities  were  prohibited  from  alliance  and  intercourse 
with  each  other  and  bound  as  closely  as  possible  to  Rome. 
Roman  citizenship  was  conferred  on  those  in  new  scttlcnicnls 
or  acquisitions  in  preference  to  the  priviliges  enjoyed  l)y  tlu' 
Latin  communities. 

The  leadership  of  Rome,  which  at  first  carried  with  it  no 
dominion  over  the  allies,  little  by  little  was  converted  into 
rulership,  so  far  as  all  matters  relating  to  external  policy  were 
concerned.  The  creation  of  new  communities  allied  to  the 
Latin  confederacy  would  have  stood  in  the  way  of  the  ex- 
tension of  the  dominion  of  Rome.  From  the  settlements  on 
the  Roman  hills  proceeded  other  neighboring  settlements,  to 
whose  members  the  full  rights  of  Roman  citizens  were  ac- 
corded. By  treaties  or  decrees  the  right  oi  full  citizenship 
was  conferred  on  subjugated  towns  and  new  settlements  more 
distant  from  the  city.  Revolts  of  some  Latin  towns  were 
punished  by  taking  from  them  their  sejmrate  organizations  and 
incor[)orating  them  as  integral  parts  of  the  Roman  state. 
There  were  other  communities  on  which  were  conferred  Ro- 
man citizenship  without  the  right  of  suffrage.  They  were 
entitled  to  all  the  legal  rights  and  protection  of  other  citizens, 
and  alike  subject  to  military  service,  but  merely  could  not  vote 
or  hold  office.  Other  people,  attached  to  Rome  as  a  result 
of  war,  were  granted  rights  and  ruled  in  such  manner  as 
might  be  determined  by  treaty  or  by  the  Romans.  There  were 
thus,  during  the  extension  of  the  power  of  Rome  over  Italy, 
four  classes  of  communities:  i.  Roman  with  full  Roman  citi- 
zenship; 2.  Latins  with  municipal  freedom  and  governments 
corresponding  in  form  to  that  of  Rome,  but  in  all  matters  of 
foreign  policy,  of  peace  and  war,  under  the  guidance  of  Rome, 
and  prohibited  from  all  alliances  within  or  without;  3.  com- 
munities whose  members  were  citizens  sine  siiffragio,  included 


ROME  325 

in  the  census,  but  neither  entitled  to  vote  or  hold  office;  4.  non- 
Latin  communities  with  varying  rights  depending  on  treaties 
or  Roman  decrees.  The  third  of  these  classes  disappeared 
about  the  time  of  Hannibal's  wars,  being  either  granted  full 
citizenship  or  entirely  deprived  of  it.  In  after  time  the  Ro- 
man franchise  was  more  and  more  sparingly  conferred.  With 
the  extension  of  Roman  power  throughout  Italy  there  was 
neither  direct  administration  of  local  affairs  by  officers  ap- 
pointed at  Rome,  except  prefects  named  by  the  praetor  for 
Roman  colonies,  nor  representation  of  the  different  cities  and 
states  in  the  central  government  at  Rome.  Neither  did  Rome 
exercise  the  power  of  direct  taxation  in  the  conquered  dis- 
tricts, but  the  institutions  of  the  various  communities  were 
moulded  into  accord  with  those  of  Rome,  and  local  govern- 
ment was  administered  l)y  local  authority.  Those  persons  and 
communities  enjoying  full  citizenshi])  might  exercise  it  as 
members  of  the  tribes  and  centuries  at  Rome,  but  not  through 
any  system  of  representation.  The  struggle  between  the  dif- 
ferent orders,  through  which  the  plchs  gained  the  power  to 
make  laws,  had  no  permanent  effect  tending  to  improve  the 
situation  of  the  poor  and  middle  classes.  The  differentiation 
of  rich  from  poor  went  on  during  the  period  of  Rome's  great 
successes  with  constantly  increasing  speed.  The  poison  of 
slavery,  fostered  and  perpetuated  by  successful  wars  through 
which  the  slave  market  was  constantly  supplied,  lay  at  the 
foundation  of  the  industrial  and  commercial  system.  The 
burdens  of  war  fell  mainly  on  the  small  farmers.  The  privi- 
leged classes  extended  their  possessions  and  pastured  their 
herds  and  flocks  on  the  public  lands  wrested  from  newly  sul)- 
jugated  people.  The  earnings  of  slaves  bought  more  slax-es 
for  the  rich,  while  competition  with  slave  labor  and  the  ex- 
tortions of  usurers,  wdio  multiplied  with  great  rapidity,  placed 
the  small  farmer  or  tradesman  between  the  upper  and  netlier 
millstone.  From  the  multitude  of  ruined  farmers  and  traders 
and  their  descendants,  recruited  ])v  frecdmen.  tlicre  was  dc- 
\elopcd  that  vast  mass  of  poor  and  (lc])endent  citizens,  for 
whose  benefit  the  senate  deemed  it  wise  to  ])rovide  cheap  bread 
and  amusements.     The  gains  of  the  coninKjn   [jcoi)le   in   tin 


326  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

system  of  government  were  theoretical,  while  the  aristocracy 
seized,  exercised  and  retained  an  increased  measure  of  power. 
With  the  extension  of  the  field  of  operation  of  the  armies 
changes  in  the  military  system  were  inevitable.  Whereas,  in 
the  early  days  an  army  was  made  up  of  the  citizens  commanded 
by  a  consul,  going  forth  to  fight  some  near  enemy  during  a 
brief  campaign  and  then  returning  to  the  ordinary  peaceful 
avocations,  distant  campaigns  required  longer  terms  of  ser- 
vice and  rendered  it  impracticable  to  recall  and  disband  the 
army  within  the  year  of  service  of  the  consul.  It  therefore 
became  the  practice  to  extend  the  command  of  the  consuls 
engaged  in  distant  wars  beyond  the  year,  and,  in  place  of  a 
citizen  soldiery  equipped  at  their  individual  expense,  it  l)e- 
came  necessary  to  have  paid  legions.  With  the  multiplication 
of  distant  provinces,  requiring  the  presence  of  armies  to  pr  - 
tect  the  frontier  and  repress  insurrections,  proconsuls  wcr'- 
appointed  and  continued  in  command  for  such  periods  as  tlr 
senate  determined.  For  the  administration  of  the  law  dis- 
tricts were  established,  to  each  of  which  a  prefect  was  sent. 
who  was  a  judicial  officer  at  the  head  of  the  civil  admini 
tration  of  the  law.  Strictly  local  affairs  were  everywhere  sub- 
ject to  municipal  authority  in  the  cities  and  Roman  colonies, 
and  local  customs  were  not  disturbed,  except  for  strong  rea- 
sons. Alliances  were  formed  with  native  rulers,  wherever 
the  interests  of  Rome  could  be  advanced  thereby,  and  the  set- 
tled foreign  policy  was  expressed  by  the  maxim,  "divide  and 
rule."  To  this  end  republican  Rome  did  not  hesitate  to  ally 
itself  with  kings  and  arbitrary  rulers,  wherever  such  alliances 
appeared  useful  in  its  struggle  with  an  aristocracy  like  that 
of  Carthage.  With  the  extension  of  Roman  power  the  pos- 
sessions of  the  patricians  and  wealthy  plebeians  were  extended, 
and  their  estates  spread,  not  only  over  newly  acquired  dis- 
tricts in  Italy,  but  into  distant  provinces.  The  money  lenders 
also  followed  in  the  wake  of  the  armies,  wherever  the  author- 
ity of  praetor  and  prefect  could  be  depended  on  to  enforce 
the  payment  of  usury.  With  the  administration  of  govern- 
ment in  distant  provinces  inhabited  by  alien  people,  that  high 
sense  of  public  duty  and  strictness  of  integrity  for  which  the 


ROME  2>2^ 

early  Romans  were  distinguished  disappeared,  and  oflicials 
returned  to  Rome  with  vast  wealth  extorted  from  them. 
These  evils  became  so  great,  that  in  149  B.C.  a  special  court 
was  established  for  the  trial  of  cases  of  official  extortion  in 
the  provinces,  the  jurisdiction  of  which  was  subsequently  ex- 
tended to  cases  of  treason  and  bribery.  The  ancient  system 
of  serving  the  state  in  all  public  stations  without  pay,  though 
still  continued  at  home,  thus  had  engrafted  on  it  a  most  cor- 
rupt and  corrupting  system  of  public  service  in  the  provinces. 

Under  the  constitution  above  described,  with  the  theoretical 
power  of  lawmaking  and  election  of  officers  in  the  hands  of 
the  common  people,  but  the  actual  direction  of  affairs  in  the 
senate,  the  power  of  Rome  was  extended  throughout  Italy, 
the  Punic  wars  were  waged  and  Carthage  destroyed  in  146 
B.C.  As  incident  to  the  struggle  with  Carthage  Sicily  and 
Spain  were  reduced  to  Roman  provinces,  and  on  its  final  de- 
struction its  territory  was  also  ruled  directly  from  Rome. 
Toward  the  east  Rome  did  not  at  first  seek  to  establish  a 
political  dominion,  but  sought  alliances  and  commercial  rela- 
tions. The  encouragement  given  the  Carthaginians  under 
Hannibal  by  the  king  of  Macedon  led  to  war,  first  with  Philip 
and  afterward  with  his  son  Perseus,  resulting  in  his  total 
defeat  and  capture  by  Aemilius  Paulus  168  B.C.,  but  Macedon 
was  not  reduced  to  a  Roman  province  till  146  B.C.  The  first 
appearance  of  the  Romans  in  Greece  was  as  friends  and  allies 
against  Macedon,  and  on  the  first  overthrow  of  the  Macedon- 
ian power  the  Greeks  were  liberated  to  their  great  delight,  but 
their  internal  dissensions  soon  led  to  the  establishment  of  the 
usual  provincial  system. 

With  the  rapid  extension  of  Roman  power  on  the  three 
continents  came  a  correspondingly  rapid  development  of  social 
disorders.  The  Roman  republic  had  been  developed  as  a 
municipal  system  for  the  protection  and  well  being  of  a  com- 
paratively small  state.  Its  first  extensions  of  infiucnce  were 
over  other  cities,  similarly  organized,  to  which  substantial 
e(|uality  was  accorded;  but  with  the  rapid  extension  of  empire 
l\(»me  as  a  central  power  dictated  to  the  known  world.  It 
was  no  longer  an  associatit)n  of  freemen,  differing  somewhat 


328  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

in  rank,  but  closely  allied  in  interest  and  sentiment,  but  a  city 
containing  a  vast  mixed  population,  drawn  from  many  na- 
tions, most  of  whom  were  poor,  ignorant  and  brutal,  and  a 
numerous  aristocracy  of  great  wealth,  despising  all  labor 
and  laborers.  Avarice  and  greed  of  power  became  the  rul- 
ing passions  of  the  nobility.  The  proconsuls  and  prefects, 
who  returned  after  the  exercise  of  ill-defined  and  unrestrained 
powers  in  the  provinces,  despised  the  rabble  of  the  city,  and 
were  impatient  of  the  authority  of  the  senate.  Ill-gotten  gains 
were  lavished,  when  occasion  required,  to  corrupt  the  multi- 
tude, and  mercenary  legions  ceased  to  have  the  feelings  or  the 
interests  of  the  ancient  citizen  soldiery,  but  followed  their 
favorite  leaders  without  regard  to  law  or  justice.  Moral  de- 
basement of  Roman  society  preceded  the  disorders  which  re- 
sulted in  the  overthrow  of  the  republic.  The  efforts  of  the 
Gracchi  to  curb  the  power  of  the  rich  and  afford  relief  to  the 
multitude,  were  not  productive  of  permanent  results,  and  cost 
them  their  lives.  Marius,  though  one  of  the  comnnju  peojjle 
and  six  times  chosen  consul  by  them,  was  a  soldier,  and  at 
last  he  swept  away  the  ancient  system  of  organization  of  the 
legions  and  substituted  voluntary  enlistment  for  compulsory 
levy.  The  revolt  of  the  Italians  resulting  in  the  social  war, 
which  occurred  90  B.C.,  was  the  beginning  of  those  disorders 
which  finally  resulted  in  the  empire.  The  legions  under  Sulla 
and  the  grant  of  the  Roman  franchise  to  citizens  of  allietl 
communities  domiciled  in  Italy  overcame  the  resistance  in  the 
provinces,  but  Sulla  returned  to  Rome  at  the  head  of  his 
legions,  and  for  the  first  time  in  the  history  of  the  city  public 
measures  were  dictated  and  carried  by  military  power.  The 
substitution  of  violence  for  the  ancient  peaceful  vote  evi- 
denced the  decay  of  patriotism,  and  soon  after  Sulla's  de- 
parture for  Asia  at  the  head  of  his  legions  the  new  citizens, 
who  sought  to  exercise  the  franchises  bestowed  on  them,  were 
attacked  in  the  forum  by  an  armed  force,  acting  under  orders 
of  the  consul  Octavius,  and  great  luimbers  of  them  slain.  In 
place  of  the  government  of  law  there  had  come  the  sway  of 
military  power. 

From  the  ascendency  of  Sulla  to  that  of  Caesar  the  military 


ROME  329 

leaders  ruled  in  fact,  using  constitutional  forms  only  as  a 
means  of  acquiring  arbitrary  powers.  In  the  early  period  of 
the  development  of  military  rule  the  leaders  sought  independ- 
ent commands  in  the  great  provinces,  by  which  they  became  in 
fact  dictators  over  vast  territories,  supported  in  the  exercise 
of  unlimited  powers  by  Roman  troops.  Having  become  ac- 
customed to  the  exercise  of  unrestrained  power  abroad,  they 
did  not  brook  constitutional  restraints  at  home.  Sulla  gained 
the  command  in  Asia  by  the  aid  at  Rome  of  the  legions  he 
commanded  in  the  Social  war.  After  his  departure  Cinna  and 
Marius  returned  with  their  armed  followers  to  wreak  ven- 
geance on  their  enemies  and  overawe  the  senate.  Sulla  on  his 
return  from  Asia  crushed  his  adversaries  and  barbarously 
murdered  great  numbers.  The  outbreak  in  73  B.C.  under 
Spartacus  and  the  conspiracy  of  Catiline  were  but  evidences 
of  the  decay  of  constitutional  government.  The  senate, 
though  led  by  so  brilliant  an  orator  as  Cicero,  had  lost  its 
moral  ascendency,  and  adopted  the  low  expedient  of  calling 
on  one  usurper  to  put  down  another.  Pompey's  power  and 
ambition  developed  in  the  command  of  Spain,  followed  by  a 
dictatorship  over  the  Mediterranean  Sea  and  its  coasts  for 
the  extirpation  of  piracy.  The  alliance  of  Caesar,  Crassus  and 
Pompey  resulted  in  the  confirmation  of  Pompey's  power  in 
Asia  and  a  five  years'  lease  of  power  to  Caesar  in  Gaul  and 
Illyricum.  In  55  B.C.  Caesar's  command  was  renewed  for 
another  five  years.  Pompey  received  Spain  and  Africa  and 
Crassus,  Syria.  On  his  return  in  49  and  the  flight  of  Pompey 
Caesar  assumed  the  whole  power.  The  government  had  been 
in  a  stage  of  transition  for  half  a  century,  but  it  was  not  of 
the  kind  that  had  gone  on  during  the  prior  history  of  the 
state.  There  was  comparatively  little  agitation  of  theories  of 
government,  of  rights  of  classes,  or  of  official  powers.  ATili- 
tary  leaders  sought  great  commands,  and  having  gained  them 
perjjetuated  and  extended  their  power  by  the  use  of  the  legions 
under  them.  It  was  a  mere  exercise  of  usurped  authority, 
backed  by  military  force  accustomed  to  obey  the  leaders'  com- 
mands. There  was  no  independent  and  vigorous  force  in  the 
state,  competent  to  formulate  and  maintain  anything  like  a 


330  EVOLUTION    OF   GOVERNMENTS    AND   LAWS 

just  public  sentiment  of  controlling  influence.  The  senate 
divided  into  factions  attached  to  the  contending  military  lead- 
ers. The  great  multitude,  being  without  property,  were  in- 
capable of  steady,  united  effort  to  accomplish  any  reform 
beneficial  to  themselves,  and  were  in  fact  too  brutal  and  igno- 
rant to  appreciate  justice  or  virtue.  The  one  conspicuous  and 
appalling  fact,  which  accounts  for  all  the  political  evils  from 
which  Rome  suffered,  was  the  general  and  all  pervading  moral 
debasement  of  the  people.  Among  the  wealthy  classes  gross 
sensuality  was  the  rule.  The  marriage  bond,  which  in  the 
early  days  had  been  regarded  as  of  peculiar  sanctity,  was 
treated  as  a  mere  matter  of  convenience,  and  we  read  of  all 
sorts  of  divorces  and  exchanges  of  wives  among  the  patri- 
cians. The  strength  of  the  social  system  of  Rome  had  cent- 
ered around  the  family  lares  et  penates,  and  the  close  tie 
which  held  husband  and  wife,  parent  and  child,  together. 
Laxity  of  the  bond  which  holds  man  and  wife  together  and 
laxity  of  morals  are  inseparable.  Without  purity  and  in- 
tegrity in  the  homes  there  is  no  basis  for  virtue  in  the  state. 
Slavery,  in  itself  utterly  immoral,  is  naturally  productive  of 
allied  evils.  The  great  houses  of  Rome  rested  on  the  supp(3rt 
of  slaves.  Labor  in  all  its  forms  was  regarded  as  fit  for 
slaves  only.  To  earn  money  by  any  useful  employment  was 
to  incur  disgrace  and  social  ostracism.  In  their  amusements 
the  Romans  exhibited  in  strong  light  their  moral  depravity. 
The  savage  games  and  gladiatorial  contests  educated  the  multi- 
tude to  brutality.  The  great  mass  of  paupers,  who  yet  were 
not  slaves,  were  raised  under  a  system  which  rendered  it  not 
only  disgraceful  to  work  but  of  very  little  profit.  To  fight  in 
the  arena  or  in  the  legions  offered  the  best  rewards.  As  it 
had  departed  step  by  step  from  the  path  of  virtue,  the  repu1)Hc 
had  lost  its  vitality.  Freedom  cannot  possibly  exist  without 
justice.  In  looking  for  the  cause  of  the  overthrow  of  the 
Roman  republic  various  phases  of  the  situation  are  given 
special  prominence  by  dift'erent  ones,  but  the  plain  fact  is 
apparent,  that  moral  degradation  was  all  sufficient  to  produce 
every  disorder. 

Caesar  appears  to  have  been  not  worse,  but  rather  better. 


ROME  331 

than  the  average  of  his  contemporaries.  After  he  crossed  the 
Rubicon  he  proceeded  to  restore  order  without  resorting  to  the 
butchery  of  Pompey's  followers  or  confiscation  of  their  prop- 
erty. In  this  he  showed  his  superiority  to  Sulla  and  Marius. 
He  did  not  ostensibly  change  the  constitution,  but  he  in  fact 
seized  full  sway  and  ruled  nominally  as  a  constitutional  dic- 
tator, but  without  limitation  of  time.  The  style  of  perpetual 
dictator  implied  a  suspension  of  all  limitations  on  his  power 
during  life.  While  he  sought  to  restore  prosperity  and  re- 
lieve individual  distress  by  allotments  of  lands  to  his  old 
soldiers^  by  the  colonization  of  Carthage  and  Corinth,  by 
stimulating  settlements  and  improvements  in  the  decaying 
towns  and  on  the  public  lands  of  Italy,  by  draining  the  Fucine 
Lake  and  the  Pomptine  Marshes  and  other  like  works,  he  yet 
dissolved  the  popular  political  clubs  and  guilds,  curtailed  the 
free  distribution  of  corn,  and  abolished  the  popular  element  of 
the  judiciary.  He  assumed  the  title  "imperator"  and  ruled 
through  his  "legates,"  admitting  no  check  or  negative  of  his 
commands  by  any  authority.  In  form  the  old  system  con- 
tinued and  officers  exercised  their  functions  as  of  old.  The 
senate  met,  deliberated  and  resolved,  the  assembly  passed  laws 
and  elected  magistrates.  There  were  consuls,  praetors,  trib- 
unes, aediles,  and  quaestors  as  of  yore,  but  there  was  one  su- 
preme will,  to  which  all  opposition  must  yield,  that  of  Caesar. 
He  transformed  the  senate  by  raising  its  numbers  to  nine 
hundred  and  including  in  its  list  his  old  soldiers,  sons  of  freed- 
men,  and  even  Gauls.  He  finally  severed  all  authority  over 
the  provinces  from  the  Roman  comitia  and  exercised  his  abso- 
lute power  through  his  appointees.  At  Rome,  as  in  the  prov- 
inces, the  officials  chosen  by  the  people  were  limited  to  the 
exercise  of  municipal  authority.  He  established  in  Italy  a 
uniform  system  of  municipal  government,  which  his  succes- 
sors extended  throughout  the  empire.  His  brief  rule  from 
49  to  44  B.C.  was  long  enough  to  give  definite  form  to  the 
changed  system  of  Roman  government,  and  to  confer  on  him 
the  title  of  founder  of  the  empire,  although  a  period  of  civil 
war  and  turmoil  and  the  division  of  the  empire  among  the 
triumvirs  intervened  before  the  government  became  settled 
under  Augustus. 


332  EVOLUTION    OF    GOVI^RNMRNTS    AND    LAWS 

Octavius  after  the  overthrow  of  Anthony  at  Actium  pro- 
ceeded to  so  reconstruct  the  government  as  to  retain  all  ulti- 
mate authority  in  his  own  hands,  while  preserving  the  forms 
of  the  republic.  He  did  not  lay  claim  to  authority  derived 
from  a  source  above  or  outside  the  people.  On  the  contrary 
he  took  his  extraordinary  powers  by  grant  of  the  people  and 
under  names  and  forms  familiar  to  the  republic.  On  the  re- 
storation of  peace  in  28  he  resigned  the  dictatorial  powers, 
which  he  had  held  through  the  civil  war,  and  handed  over  the 
republic  to  the  control  of  the  senate  and  people.  The  senate, 
assemblv  and  magistrates  resumed  their  functions.  By  decree 
of  the  senate  Octavius  was  granted  the  proconsulor  authority 
over  all  the  provinces  in  which  there  was  any  military  force, 
the  supreme  command  of  all  the  land  and  naval  forces  of  the 
empire,  with  full  power  to  recruit,  pay  and  dismiss  soldiers, 
equip  fleets,  wage  war  and  make  treaties.  This  authority 
was  given  at  first  for  ten  years.  The  power  did  not  differ  in 
character  from  that  which  had  long  before  been  habitually 
conferred  on  proconsuls  in  limited  territories  for  shorter 
periods.  In  23  the  governors  of  all  the  provinces  were  subor- 
dinated to  him,  and  he  was  exempted  from  the  ancient  law 
requiring  a  proconsul  to  lay  down  his  power  on  entering  Rome, 
and  was  allowed  to  bring  into  the  city  his  prefects  and  prae- 
torian guards  and  exercise  his  proconsular  powers  from  the 
city.  This  grant  of  power  was  formally  renewed  for  subse- 
quent periods  of  five  and  ten  years.  In  Rome  the  proconsuls 
iinpcriinii  carried  preeminence  and  the  right  to  take  his  seat 
l)etween  the  consuls,  to  be  attended  by  lictors,  wear  the  laurel 
wreath,  palndamentnm,  general's  cloak  and  sword  of  the 
inipcrator.  The  senate  conferred  on  him  the  title  Augustus, 
and  he  was  ix)pularly  termed  princcps.  To  complete  the 
measure  of  his  power  he  was  also  made  a  tribune  of  the  plcbs 
by  decree  of  the  senate  and  vote  of  the  assembly.  This  gave 
him  the  right  of  absolute  veto  on  the  acts  of  every  administra- 
tive officer,  and  to  convoke  the  assembly  and  senate  and  pro- 
pose to  them  new  laws.  The  fundamental  change  which  had 
come  over  the  views  of  the  Roman  people  with  reference  to  all 
governmental  matters  was,  that  in  place  of  lookins:  either  to 


ROME  333 

the  aristocratic  senate  or  the  popular  assembly  as  the  source 
of  power,  all  eyes  were  turned  to  the  proconsul.  The  senate 
and  assembly  became  mere  instruments  for  the  ratification  of 
his  will.  Under  Sulla,  Cinna,  Marius  and  Caesar  it  had  been 
shown,  that  whomever  the  legions  obeyed  was  master  also  of 
the  civil  power  and  could  command  the  votes  of  the  popular 
assembly  as  well  as  of  the  senate. 

Augustus  reorganized  the  army,  enlisting  soldiers  for  long 
periods  of  service,  twelve  to  sixteen  years,  with  regular  pay. 
Of  these  he  kept  the  praetorian  guard,  his  household  troops 
and  picked  veterans,  numbering  in  all  12,000  to  15,000,  at 
l^ome.  The  whole  army  consisted  of  twenty-five  legions,  each 
made  up  of  6,100  foot  and  726  horse,  recruited  both  from 
citizens  and  subjects  of  the  provinces.  Aside  from  these  aux- 
iliaries from  allied  nations  and  dependencies  were  employed, 
numbering  about  as  many  more. 

Under  Augustus  the  ancient  system  of  municipal  govern- 
ment was  preserved  in  form  at  Rome,  but  throughout  all  the 
provinces  his  absolute  impcruini  was  under  no  check  or  limi- 
tation. The  actual  administration  of  this  absolute  power  was 
carried  on  in  accordance  with  a  regular  system,  and,  theoretic- 
ally at  least,  justice  was  administered  in  accordance  with  laws. 
The  municipal  system  modelled  after  that  of  Rome,  had  in 
republican  times  prevailed  in  all  the  Roman  colonies,  and 
under  the  empire  it  was  extended  to  the  provincial  cities  gen- 
erally, each  city  having  officers  corresponding  to  the  consuls 
and  senate,  who  regulated  local  affairs  and  decided  small  cases, 
l-'.ach  senate  sent  two  of  its  members  to  Rome  to  represent 
its  interests  there. 

For  the  ])urpose  of  levying  the  taxes  Augustus  caused  a 
great  map  of  the  empire  to  be  made.  The  lands  were  classi- 
fied and  rates  of  taxation  fixed  according  to  the  quality  of  the 
soil  and  nature  of  the  products.  From  some  ])rovinces  a 
.share  of  the  product  was  taken  in  kind,  while  from  others 
payment  in  monev  was  rcfjuircd.  The  i\omans  were  skilled  in 
the  art  (jf  levying  taxes,  and  not  only  land  and  cai)itation 
taxes,  but  various  forms  of  excise  taxes  and  import  duties 
were  levied,  and  the  products  of  the  nn'nes  as  well  as  of  the 


334  EVOLUTION    OF    GOVERiNMENTS    AND    LAWS 

fields  were  made  to  swell  the  revenue.  Under  Augustus  the 
senate  was  allowed  to  retain  control  over  the  acrarinvi,  or 
treasury  of  the  city,  but  the  emperor's  treasury,  called  the 
fiscus,  received  the  taxes  from  the  provinces  and  was  subject 
to  his  sole  authority.  In  a  short  time  the  aerariiim  fell  under 
the  control  of  the  emperors.  The  army  and  the  treasury  up- 
held and  perpetuated  his  power.  To  rule  so  many  people  and 
so  vast  a  territory  and  make  his  will  effectual,  general  rules 
of  conduct  must  be  announced  and  enforced  through  the  prae- 
tors and  other  officers.  The  vastness  of  the  tyrant's  power 
compelled  its  exercise  in  accordance  with  fixed  principles 
rather  than  caprice,  and  this  necessity  promoted  the  develoi)- 
ment  of  that  great  system  of  settled  principles,  based  on  the 
consensus  of  opinion  of  successive  generations,  which  fur- 
nishes the  foundation  of  the  modern  jurisprudence  of  most 
European  and  American  states. 

During  the  republic,  except  when  a  dictator  held  absolute 
power  in  an  emergency  and  for  a  brief  period,  the  functions 
and  powers  of  all  public  officials  were  limited  by  law,  and 
different  offices  were  designed  to  afford  a  check  on  each  other. 
The  fundamental  change  effected  by  the  Caesars  superimposed 
a  military  head,  who  was  not  accountable  to  the  people  or  the 
senate.  Augustus  did  not  attempt  to  break  up  the  ancient 
civil  system,  but  rather  to  reconstruct  and  strengthen  it.  In- 
stead of  abolishing  minor  offices  he  increased  the  number. 
The  senate  was  allowed  to  continue  to  deliberate  and  exercise 
its  former  functions  in  all  matters  which  did  not  interfere 
with  his  supremacy  or  policy.  The  evils  of  this  system  had 
been  manifested  under  the  temporary  grants  of  dictatorial 
powers  during  the  civil  wars,  and  became  more  apparent  under 
succeeding  rulers.  Unrestrained  power  in  the  hands  of  bad 
men  is  always  abused.  Not  only  does  the  tyrant  gratify  his 
own  personal  malice  and  ruin  or  destroy  his  particular  ene- 
mies, but  those  whom  he  uses  as  his  instruments  for  such 
purposes  are  also,  as  a  rule,  allowed  to  treat  their  enemies  in 
a  similar  manner.  By  far  the  greater  number  of  victims 
under  the  worst  of  the  emperors  owed  their  misfortunes  to 
the  malice  of  favorites  and  subordinates,  who  used  the  author- 
ity of  the  emperor  to  further  individual  ends. 


ROME  335 

The  idea  of  government  by  law  was  never  wholly  aban- 
doned under  even  the  worst  emperors.  While  he  was  subject 
to  no  supervision  or  control,  he  still  in  theory  was  subject  to 
the  laws.  This  adherence  to  laws  rendered  order,  tranquillity 
and  prosperity  possible  under  the  best  of  the  emperors,  and 
greatly  mitigated  the  evils  under  the  worst  of  them.  The 
habit  of  recurrence  to  a  recognized  standard  of  right  or  of 
conduct  tended  to  steadily  diminish  the  number  of  personal 
feuds,  and  to  encourage  commerce  and  agriculture.  The 
element  of  arbitrary  power  was  looked  upon  as  a  great  bless- 
ing when  wielded  by  virtuous  rulers,  but  the  poison  of  the 
system  became  manifest  under  every  weak  or  vicious  one. 
Against  a  tyrant  there  was  no  protection,  and  the  Roman 
people  no  longer  strove  to  improve  their  governmental  sys- 
tem, or  to  study  great  social  questions. 

In  the  administration  of  the  law  the  judges  were  expected 
to  decide  causes  in  accordance  with  settled  rules.  Wherever 
a  legislative  enactment  covered  the  case  they  were  of  course 
bound  by  it,  but,  in  the  absence  of  such  a  positive  law,  a  sys- 
tem of  rules  was  evolved  by  those  who  made  a  special  study 
of  the  law,  and  who  were  looked  to  as  authority  on  doubtful 
points.  The  judges  who  actually  administered  the  law  were 
not  regarded  as  authoritative  expositors  of  it.  In  cases  of 
doubt  they  applied  to  the  learned  juris  consults,  licensed  by  the 
emjjeror  to  give  written  expositions  of  the  law,  for  an  opin- 
ion. This  was  given  in  writing  and  was  generally  regarded 
as  binding,  except  that  where  two  juris  consults  gave  opposing 
opinions  the  judge  was  free  to  decide  according  to  his  own 
views.  The  emperor  exercised  judicial  functions  in  cases 
brought  before  him  either  originally  or  by  appeal  or  removal 
from  an  inferior  court.  Imperial  decrees  and  rescripts  in  cases 
decided  l)y  him  came  to  have  the  effect  of  laws.  The  emperor 
in  theory  merely  declared  the  preexisting  law,  but  when  the 
question  was  new  the  declaration  had  the  effect  of  the  enact- 
ment of  a  law.  These  were  formulated  under  the  advice  and 
with  the  assistance  of  the  most  learned  lawyers,  who  proceeded 
step  by  step  tc;  build  up  a  great  system  of  jurisprudence. 
Though  the  governmental  .system  became  rigid,  unprogressive 


336  EVOLUTION    OF    GOVERiNMKNTS    AND    LAWS 

and  therefore  moribund,  with  the  final  estabHshment  of  the 
empire  the  development  of  the  system  of  laws  went  on  in  the 
most  rational  manner.     To  the  Romans  the  credit  is  due  of 
systematically    developing   rules    of    conduct    and   governing 
property  rights  from  an  intelligent  consideration  of  the  needs 
cf  society.     They  did  not  attempt  at  one  stroke  to  cover  the 
whole   field  by  a  code  of   laws  which  should  not  admit  of 
change  or  modification,  but  proceeded  to  consider  the  ques- 
tions as  they  arose  from  time  to  time,  and  formulated  their 
principles  from  what  accorded  with  their  conceptions  of  right. 
Under  the  republic  it  had  been  deemed  unjust  or  imi)racticable 
to  measure  the  rights  of  strangers  trading  with  citizens  or 
with  each  other  l)y  the  Roman  jus  civile,  and  so  what  was 
styled  jus  gentimn  or  private  international  law  was  evolved 
by  the  praetors.     About  242  B.C.  a  second  praetor  was  ap- 
pointed, called  praetor  peregrinus,  whose  principal  duty  was 
to  hear  causes  to  which  foreigners  were  parties,  and  in  the 
exercise  of  his  jurisdiction  he  applied  the  jus  gentium  in  those 
cases  where  Roman  civil  law  was  not  within  the  contemplation 
of  the  parties  and  its  application  would  be  productive  of  mani- 
fest hardship.     The  Roman   system  under  the  republic  ex- 
hibited a  marked  tendency  to  adapt  itself  to  the  public  needs 
and  to  change  with  changing  conditions,  and  herein  lies  the 
secret  of   its   remarkable   development.      Under  the   republic 
the  praetors  were  accustomed,  on  taking  ot^ce,  to  publish  on 
their   alhums    (white   boards   in   the    forum),    edicts   making- 
known  the  relief  they  would  afford  in  certain  classes  of  cases. 
These  edicts  might  l)e  continued  by  the  successor  or  not,  but 
many  of  them  were  repeatedly  proclaimed  and  came  to  ha\e 
practically  the  force  of  settled  law.    With  the  development  of 
commerce  the  customs  of  merchants,  based  on  the  necessities 
of  the  conditions  under  which  their  business  was  transacted, 
were  recognized  by  the  praetors,  and  these  customs  in  course 
of  time  ripened  into  laws.     It  was  this  facility  for  dealing 
with  new  conditions  and  adapting  means  to  ends  that  rendered 
continued  Roman  supremacy  possible.     The  rulers  at  Rome 
had  to  deal  with  people  varying  in  civilization  and  culture 
from  the  rude  tribes  on  all  the  frontiers  of  the  three  continents 


ROME  2,2>7 

to  the  highly  poHshed  Greeks.  For  the  first  time  in  the 
world's  history  there  were  united  under  a  single  authority  the 
dwellers  in  the  earliest  seats  of  civilization  in  Egypt  and 
western  Asia,  the  Phoenician  colonies  of  Africa,  Sicily  and 
Spain,  Greece  and  all  the  Greek  islands  and  colonies,  the  rude 
tribes  of  Spain,  Gaul,  Germany,  Britain  and  Thrace,  as  well 
as  the  varied  population  of  Italy.  Rome  from  its  earliest 
conquests  had  been  accustomed  to  accord  local  self-govern- 
ment to  subjugated  communities,  and  throughout  the  develop- 
ment of  all  its  vast  empire,  and  after  the  fall  of  the  republic 
it  continued  to  leave  the  regulation  of  purely  local  affairs  to 
the  people  interested,  but  the  central  authority  had  to  deal  with 
the  relations  of  all  these  varied  peoples  with  Rome  and  the 
Romans,  and  with  such  other  portions  of  the  empire  as  they 
were  permitted  to  have  dealings  with.  The  jus  cii'ilc  was  the 
law  adapted  to  the  conditions,  customs  and  prejudices  of 
Romans,  but  not  to  those  of  strange  people. 

In  the  development  of  the  jus  gcntiiuii  the  Komans  sought 
rules  which  could  be  safely  applied  under  all  conditions  and 
between  all  people.  It  would  be  inaccurate  to  say  that  they 
strove  to  do  ideal  justice  in  each  case,  or  that  they  searched 
for  rules  founded  solely  on  moral  principles,  but  a  search 
after  general  rules  which  can  safely  be  applied  under  all  cir- 
cumstances necessarily  leads  in  the  direction  of  truth,  justice 
and  morality.  The  jus  gentium  of  the  Roman  jurists,  though 
developed  in  a  manner  somewhat  similar  to  the  common  law 
of  England,  differed  from  it  in  this,  that  the  jus  gentium  was 
based  on  the  needs  of  the  newly  acquired  foreign  subjects, 
while  the  common  law  is  based  on  domestic  customs  and 
needs.  Both  however  have  for  their  foundation  the  presumed 
existence  of  principles  of  recognized  force,  though  not  ]iro- 
mulgated  by  legislative  authority.  While  the  intellectual  ac- 
tivity of  the  Greeks  exhibited  more  brilliant  results  along- 
most  lines  than  that  of  the  Romans,  in  the  science  of  law 
the  Ixomans  are  clearly  entitled  to  the  lirst  rank.  While  ihe 
system  of  goverument  estal>lishcd  by  Gaesar  carlv  manifesled 
its  imperfections  and  its  utter  lack  of  anv  mainspring  urging 
it    in    the   dirccti(jii   of   iin^jrovemenl,    the   juris  consults,   en- 


338  EVOLUTION    OU   GOVICRiNM'ENTS    AND    LAWS 

couragcd  and  efficiently  backed  in  their  efforts  by  the  best  of 
the  emperors,  by  degrees  evolved  a  system  of  laws  commend- 
ing itself  to  such  sense  of  justice  as  has  generally  obtained 
among  the  great  mass  of  mankind.  Roman  jurists  early 
found  that  a  complex  civilization  presents  complex  problems, 
and  that  the  law  must  deal  intelligently  with  these  and  with 
all  of  them,  however  numerous.  They  proceeded  laboriously 
to  formulate  rules  of  general  application,  by  which  every  con- 
troversy might  be  determined.  In  their  search  after  these 
principles  they  were  inevitably  led  to  a  consideration  of  jits 
naturalc,  which  embodied  the  idea  of  natural  rights  existing 
without  legislative  sanction.  Augustus  adhered  to  the  an- 
cient system  of  legislation  in  the  principal  reforms  he  pro- 
posed, and  caused  his  law  to  be  adopted  by  vote  of  the  comitia 
of  the  tribes.  He  made  a  most  commendal)le,  though  not 
entirely  successful,  effort  to  reform  public  morals  by  encour- 
aging marriage  and  the  rearing  of  children.  One  of  the  pro- 
visions of  his  law  excluded  unmarried  persons  within  certain 
ages  from  taking  property  by  will,  and  limited  childless  per- 
sons to  one-half  the  amount  given.  Another  class  of  legis- 
lation, deemed  of  great  importance,  regulated  the  manumission 
of  slaves  and  determined  the  status  of  freedmen  according  to 
circumstances  prescribed  in  the  law,  as  citizens,  as  capable  of 
l)ecoming  such  or,  owing  to  bad  character,  forbidden  to  reside 
within  one  hundred  miles  of  Rome  or  ever  to  become  a 
citizen.  A  third  class  of  enactments  regulated  procedure  in 
private  causes. 

From  the  time  of  Tiberius  the  comitia  was  no  longer  con- 
sulted, and  under  succeeding  emperors  imperial  rescripts  and 
decrees  gradually  superseded  legislation  by  assembly  and  sen- 
ate. Rome  witnessed  the  growth  of  the  law  of  contracts  from 
primitive  conditions  in  the  early  days  of  barter  of  chattels 
and  tribal  and  patriarchal  tenure  of  lands  through  successive 
stages  to  that  freedom  of  contract  so  essential  to  commercial 
activity.  In  the  early  stages  the  formalities  required  in  the 
transfer  of  ])ropcrty  in  order  to  furnish  a  basis  for  the  acti(^n 
of  the  courts  were  incompatible  with  anything  like  commercial 
activity,  but  step  by  step  the  law  of  contracts  developed,  till 


ROME  339 

the  intent  of  the  parties  was  given  effect  by  the  courts  with 
little  needless  formality.  The  law  of  inheritance  was  through 
all  ages  a  leading  subject  of  jurisprudence,  and  here,  as  in 
the  law  of  contracts,  there  was  a  steady  tendency  to  greater 
freedom  in  the  disposition  of  property  according  to  the  will 
of  the  owner.  Contemporaneous  with  the  vast  increase  of 
the  army  new  rights  were  accorded  to  soldiers  in  the  dispo- 
sition of  their  estates  by  testament.  As  to  property  acquired 
by  military  services  the  soldier  son  was  allowed  full  power  of 
testamentary  disposition,  freed  from  the  pafria  f^otcstas  of  the 
head  of  the  family.  With  this  change  came  also  a  recognition 
of  the  right  of  owners  generally  to  dispose  of  property  by 
will  and  the  growth  of  trusts  created  by  will.  The  great  heads 
of  legislation  and  judicial  cognizance  were  domestic  relations 
i.e.,  family  and  slaves,  inheritances,  contracts,  land  tenure. 

For  the  protection  of  invaded  rights  there  was  an  effort 
under  the  empire  to  improve  remedies  and  adapt  means  to 
ends  without  any  radical  change  of  the  system.  The  ordinary 
suit  was  instituted  by  application  to  the  praetor.  Under  the 
old  system  the  parties  themselves  formulated  the  issues  to  be 
tried  in  accordance  with  statutory  or  traditional  forms,  and 
the  issue  so  made  was  sent  to  the  judex  for  trial.  This  was 
changed  so  that  the  issue  was  framed  by  the  praetor.  The 
plaintiff  usually  stated  the  case  and  indicated  on  the  albuui 
the  remedy  he  thought  suitable,  and  the  defendant  entered 
his  plea  indicating  matter  of  defense  in  law,  and  reserving  his 
right  to  traverse  the  facts.  Thereupon  the  praetor  considered 
the  legal  exceptions  to  the  case  stated  by  the  plaintiff,  and 
made  up  a  written  and  signed  appointment  to  a  judge,  in- 
structing him  what  to  try  and  authorizing  him  to  condemn  or 
acquit  the  defendant.  The  form  in  which  the  issues  were 
framed  in  an  ordinary  action  to  recover  a  debt  was  exceed- 
ingly simple  like  this  "Caius  be  judge.  Should  it  appear  that 
M.  A.  ought  to  pay  ten  thousaufl  sesterces  to  J.  C.  in  that 
sum  condemn  .M.  A.  to  j.  ( '. ;  sliould  it  not  so  ai)pear  ac(|uit 
him"!  Modifications  of  this  form  alh^wcd  the  recovery  of 
the  value  of  chattels  or  an  equitable  accounting  of  profits  or 
the  like. 


340  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

One  form  for  the  trial  of  a  suit  for  laiul  was,  that  the 
plaintiff  recjuired  the  defendant  to  give  him  a  stipulation  to 
pay  a  nominal  sum  in  case  the  land  should  be  found  to  belong 
to  the  plaintiff  and  to  give  surety  for  its  transfer  in  that  event. 
The  question  sent  to  the  judge  to  be  tried  was  wdiethcr  the 
sum  should  be  paid.  If  the  plaintiff  recovered  and  the  de- 
fendant did  not  deliver  the  property,  recourse  was  had  on  the 
sureties.  Besides  the  set  forms  adapted  to  certain  classes  of 
actions  the  praetors  formulated  a  great  number,  suited  to 
special  cases,  generally  styled  actioncs  in  factum.  They  also 
by  interdict  gave  relief  similar  to  that  granted  by  injunction 
under  our  practice.  The  development  of  remedies  was  very 
sunilar  to  that  in  England.  In  the  early  times  a  few  set 
forms  of  action  aff'orded  all  the  relief  allowed;  later  these  by 
fiction  were  allowed  to  cover  cases  not  within  the  letter,  and 
then  new  forms  of  procedure  were  devised  to  meet  new  con- 
ditions. Causes  j)resenting  novel  questions  and  of  especial 
difficulty  were  retained  for  trial  and  disposition  by  the  praetor 
or  taken  cognizance  of  by  a  consul.  The  judiccs  to  whom  the 
l^raetors  referred  causes  were  not  officials,  but  citizens  se- 
lected to  hear  and  determine  the  particular  cases.  In  the  time 
of  Diocletian  the  system  of  referring  causes  to  judiccs  fell 
into  disfavor  and  was  soon  discontinued  altogether;  gover- 
nors, prefects  and  praeters  being  required  to  hear  the  cause 
to  the  end,  and  the  old  procedure  by  which  the  plaintiff  him- 
self brought  the  defendant  into  court  was  al)andoned. 

The  government  of  Rome,  though  in  its  essence  a  despot- 
ism, did  not  discard  all  the  forms  of  a  repul)lic  till  the  time  of 
Diocletian.  Though  for  centuries  the  obsequious  senate  had 
ratified  the  edicts  of  the  emi)erors  and  given  a  formal  sanc- 
tion to  his  will,  Diocletion  ignored  it  altogether.  He  associ- 
ated with  himself  the  harsh  and  vigorous  soldier  Maximian, 
as  joint  ruler  with  the  style  Augustus,  and  later  two  other 
associates,  as  inferiors  under  the  style  Caesares;  all  sul)or- 
dinatc  to  Diocletian  as  senior  Augustus.  He  threw  off  all 
pretense  of  constitutional  government  and  openly  assumed 
autocratic  powers,  and  to  the  title  "iinpcralor"  added  that  of 
"dominus/'  and  required  those  approaching  him  to  make  those 


ROME  341 

servile  prostrations  which  were  customary  in  the  courts  of  the 
east.  He  infused  vigor  into  the  administration  of  the  local 
government,  but  it  was  everywhere  despotic  vigor,  emanating 
from  the  central  authority.  The  government  ceased  to  be  ad- 
ministered from  Rome  as  the  seat  of  power;  Nicomedia  in  the 
east  and  Milan  in  the  west  became  the  favorite  residences 
respecti\ely  of  Diocletian  and  Maximian.  In  his  reign  the 
government  reached  its  climax  of  absolute  power  and  rigidity, 
though  the  scheme  of  a  quadruple  division  of  power  did  not 
endure.  While  administrative  changes  occurred  from  time 
to  time  thereafter,  the  government  remained  despotic,  unpro- 
gressive  and  moribund.  The  Roman  republic  was  dead.  The 
Roman  empire  ceased  to  be  ruled  either  from  Rome  as  a  capi- 
tal or  by  Romans,  for  Diocletian  was  the  son  of  slave  par- 
ents, and  his  mother  was  a  Dalmatian.  At  the  head  of  the 
civil  administration  were  four  prefects,  under  whom  were  the 
vicarii  over  the  twelve  dioceses,  and  governors  of  the  116 
provinces  with  their  hosts  of  minor  officials,  all  under  strict 
subordination  and  accountability  to  the  central  authority. 

The  reign  of  Constantine,  beginning  in  323,  witnessed  the 
establishment  of  the  capitol  of  the  eastern  empire  at  Cunstan- 
tinoi)le  and  the  adoption  of  the  Christian  religion  as  the  re- 
ligion of  the  empire,  but  the  theory  of  government  remained 
unchanged.  For  the  beneficial  effects  of  Christianity  we  have 
to  look  elsewhere  than  to  the  governmental  machinery. 
Though  writings  embodying  the  principles  of  the  law  multi- 
plied, not  only  in  the  form  of  enactments  by  the  comitia  and 
senate  and  later  in  rescripts  and  edicts  of  the  praetors  and 
emperors,  but  also  in  extended  commentaries  ])y  juris  con- 
sults, it  was  not  till  the  reign  of  Diocletian  that  the  first 
efforts  at  codification  were  made.  The  Gregorian  Code  was 
a  collection  of  imperial  rescripts  made  near  the  end  of  the 
third  century,  to  which  Hermogenianus  added  a  supplement 
about  365.  These  codes  received  the  sanction  of  Theodosius 
and  Valentinian.  Under  Theodosius  a  compilation  was  made 
and  published  A.D.  438  in  sixteen  books,  covering  the  whole 
field  of  the  law.  Other  less  noted  compilations  among  which 
may  be  mentioned  one  by  order  of  Theodoric  king  of  the 


342  KVOT.UTION    OF    GOVERlNMF.NTS    AND    LAWS 

Ostrogoths,  called  the  Edictmn  Thcodoric,  and  another  In- 
order  of  Alaric  II  king  of  the  Visigoths,  styled  Lex  Runuina 
Visigothonim. 

The  work  however  which  stands  as  the  product  of  all  legal 
development  under  the  empire  is  that  accomplished  by  Tribon- 
ian  and  his  associates.  As  we  have  seen,  during  the  years  of 
development  the  law  gained  written  expression  from  time  to 
time  in  edicts,  rescripts  and  opinions  of  the  juris  consults. 
These  in  the  time  of  Justinian  had  become  so  numerous  as 
to  fill  nearly  two  thousand  volumes.  Justinian  was  not  merely 
a  compiler,  but  himself  made  various  reforms  in  the  body  of 
the  law.  The  first  compilation  made  under  his  order  was 
called  the  code,  including  the  statute  law  and  rescripts  of  the 
(iregorian  and  Hermogenian  codes.  This  was  followed  by 
his  fifty  decisions,  the  Institutes,  the  Digest  of  writings  of  the 
jurists,  a  revised  code  and  a  series  of  Novels.  Taken  together 
they  purport  to  cover  the  whole  field  of  the  law,  civil,  criminal, 
public,  private,  secular  and  ecclesiastical.  The  most  that  can 
l)e  attempted  here  in  reviewing  this  great  work  is  a  very  gen- 
eral outline  of  its  scope  and  leading  provisions.  This  is  ren- 
dered most  difficult  by  the  want  of  systematic  and  orderly 
arrangement,  which  alone  saves  modern  publications  from 
chaotic  worthlessness. 

Of  the  compilations  of  Justinian  the  Institutes  were  de- 
signed as  a  textbook  for  the  schools,  but  the  Digest  and 
second  or  revised  code  were  declared  of  equal  authority.  A 
condensed  summary  of  the  Institutes  will  be  found  in  the  Ap- 
pendix. It  is  noticeable  that  the  compiler  and  final  authorita- 
tive promulgator  of  this  vast  product  of  Roman  jurists,  should 
have  been  a  barbarian,  born  in  Illyricum,  ruling  in  Constanti- 
nople after  the  final  extinction  of  the  western  empire  and  the 
overthrow  of  Rome  as  a  center  of  political  power.  The  vast 
accumulation  of  legal  lore  filling  so  many  volumes  was  re- 
duced to  reasonable  limits,  freed  from  many  uncertainties, 
improved  in  many  particulars  and  ])romulgated  as  of  con- 
trolling authority  in  all  courts  in  the  empire.  It  is  even  more 
remarkable  that  the  perfection  of  this  great  body  of  law  should 
have  been  effected  after  the  disintegration  of  the  empire  was 


ROME  343 

well  advanced,  and  at  a  time  when  letters  were  neglected  and 
the  authority  of  courts  was  being  broken  by  the  inroads  of 
the  barbarians  and  the  disruption  of  the  Roman  system 
throughout  the  empire.  Having  reached  its  culmination  the 
Roman  law  ceased  to  develop  or  have  uniform  operation,  but 
gave  way  to  the  customs  and  laws  of  the  barbarians  wherever 
they  supplanted  Roman  civilization.  It  was  still  resorted  to 
in  those  parts  of  the  empire  which  escaped  the  inroads  of  the 
barbarians,  and  as  learning  revived  regained  its  force  with 
modifications  resulting  from  changed  customs  and  conditions. 
Justinian,  like  many  another  lawgiver,  aimed  at  completeness 
and  finality  in  his  work,  and  forbade  the  use  of  any  other 
books  or  authorities,  or  any  comments  or  interpretations  of 
his  works.  He  like  others  was  oblivious  to  the  truth  that  an 
absolutely  fixed  and  rigid  system  of  government  or  of  laws  is 
impossible.  Anything  like  a  clear  comprehension  of  a  system 
of  laws  necessitates  an  understanding  of  the  material  and 
social  conditions  to  which  it  is  applied.  If  we  had  no  extrin- 
sic evidence,  the  laws  themselves  exhibit  the  importance  of  the 
Roman  theory  of  the  family  and  of  the  institution  of  slavery. 
From  the  earliest  days  of  Rome  slavery  had  been  a  recognized 
institution,  and  it  held  its  place  until  the  empire  broke  into 
fragments.  In  the  early  days  the  number  of  slaves  was  rela- 
tively inconsiderable,  but  as  new  territories  were  added  and 
the  rich  citizens  enlarged  their  estates,  they  increased  the 
numbers  of  their  slaves,  till  in  the  time  of  the  Caesars  the 
nobles  owned  them  by  hundreds  and  even  by  thousands.  With 
this  great  increase  in  slave  holding  came  a  corresponding  de- 
crease of  the  prosperity  of  the  poorer  class  of  citizens,  who 
throughout  the  agricultural  districts  gradually  ceased  to  be 
independent  landowners  and  became  tenants  of  the  wealthy 
proprietors.  In  course  of  time  this  tenancy  became  on  harder 
and  harder  terms,  till  the  coloni,  as  they  were  termed,  became 
virtually  serfs  attached  to  the  soil,  bound  to  cultivate  the 
land  on  terms  affording  but  a  bare  subsistence.  Agricultural 
slaves  were  to  a  great  extent  assigned  to  the  cultivation  of 
particular  tracts  of  land,  which  they  were  permitted  to  occupy 
with  their  families,  and  thus  the  actual  c(jnditions  under  which 


344  EVOLUTION    OF   COVF.RNMF.NTS    AND    LAWS 

the  coloni  and  the  slaves  Hved  were  often  very  similar.  In 
the  days  of  greater  activity  slaves  were  enij^loyed  by  their 
masters,  not  only  on  all  kinds  of  works,  bnt  in  all  trades  and 
callins;s,  and  opportunities  for  the  acquisition  of  property  and 
of  freedom  were  afforded  to  some.  The  proud  Roman  patri- 
cian desi)ised  all  useful  labor  and  entrusted  every  employment 
to  his  slaves.  Under  the  republic  their  numbers  were  sufficient 
tcj  make  servile  revolts  serious,  and  the  insurrection  under  the 
leadership  of  Spartacus  was  only  subdued  after  a  desperate 
and  bloody  war.  The  emperors  aimed  at  the  establishment 
of  social  order  and  the  protection  of  property  rights.  The 
moral  claims  of  the  slave  to  liberty  and  the  pursuit  of  happi- 
ness were  wholly  obscured  by  the  master's  right  to  property. 
The  great  province  of  law  and  government  was  first  to  firmly 
establish  the  power  of  the  emperor  and  those  acting  under 
him,  and  next  to  maintain  the  rights  of  property,  that  is  the 
donnnion  of  the  master  over  his  slaves  and  his  lands.  The 
ancient  Roman  idea  of  a  single  head  of  the  family  with  full 
swav  over  all  his  children  under  the  power  and  their  families, 
accorded  well  with  the  spirit  of  a  slave  holding  community. 
We  have  seen  how  largely  slavery  entered  into  the  legal  sys- 
tem of  Justinian,  and  how  fully  it  was  recognized,  though  de- 
clared to  be  contrary  to  natural  justice.  With  the  reign  of 
Justinian  the  empire  in  the  west  witnessed  its  last  vigorous 
assertion  of  supremacy  in  Italy,  though  it  nominally  main- 
tained a  semblance  of  authority  in  central  Italy  till  755.  The 
perfected  despotism  had  become  crystalized  under  Diocle- 
tian, leaving  no  chance  for  development  or  betterment  from 
the  wisdom  of  the  multitude.  The  lawyers  and  lawmakers 
continued  to  change,  amend  and  improve  the  laws  till  the  time 
of  Justinian,  when  they  were  compiled  by  his  direction,  and 
though  greatly  improved  and  rendered  far  easier  of  access 
than  when  scattered  through  so  many  volumes,  they  rapidly 
passed  out  of  view  and  became  unsuited  to  the  changed  con- 
ditions. The  social  decay  resulting  from  an  organization  of 
society  under  which  the  great  multitude  were  slaves,  without 
education,  opportunity  for  observation  except  of  their  im- 
mediate surroundings,  or  hope  of  better  conditions,  with  an 


ROME  345 

indolent  debauched  nobility  supported  as  drones,  invited  the 
frequent  inroads  of  the  more  free  and  vigorous  races  of  the 
north.  The  various  Germanic  tribes,  the  Goths,  Vandals, 
Lombards,  Huns  and  Franks  in  wave  after  wave  swept  down 
on  Gaul,  Spain,  Africa  and  Italy,  until  the  Roman  system 
gave  way,  and  a  new  composite  of  northern  manners  and  Ro- 
man customs  ushered  in  the  so-called  dark  ages,  when  learn- 
ing was  for  the  priest  alone,  and  war  was  the  business  of 
every  freeman.  With  the  growth  of  the  feudal  system,  with 
its  lord  paramount  at  the  top  and  its  serf  bound  to  the  soil 
at  the  bottom,  the  slavery  of  the  Romans  disappeared.  It 
may  be  interesting  for  scholars  to  trace  the  stages  by  which 
the  slaves  and  coloni  of  the  Romans  and  the  humbler  follow- 
ers of  the  Prankish  leaders  were  transformed  into  the  lowest 
round  of  the  feudal  ladder,  but  the  transformation  was  not 
the  result  of  conscious  law-making.  The  decay  always  in- 
cident to  despotism,  idleness  and  corruption  in  the  palace,  a 
multitude  of  officials,  ever  bent  on  extorting  more  and  more 
from  every  producer  of  wealth,  weakness  and  inefficiency  in 
those  who  lived  in  idleness  on  the  fruits  of  the  labors  of  oth- 
ers, at  last  culminated  in  conditions  but  little  removed  from 
anarchy.  The  various  leaders  attracted  followers  according 
to  their  abilities,  to  whom  they  parcelled  out  the  lands  on  a 
strictly  military  tenure,  the  lord  pledged  to  protect  the  vassal 
in  his  possession  and  the  vassal  bound  to  fight  in  all  the  lord's 
wars.  The  slave,  the  coloiiiis  and  the  indigent  l)ecamc  the 
serf,  ceorl  and  villein  of  the  feudal  chief.  The  eastern  em- 
pire lingered  on  as  an  uninteresting  despotism  till  the  fall  of 
Constantinople  in  1453.  At  Rome  the  spiritual  power  of  the 
l)()j:'es  gained  an  ascendency  over  ICurope,  which  made  the 
eternal  city  once  more  the  scat  of  power. 

From  the  fragments  of  tlie  western  empire,  through  num- 
berless vicissitudes  liave  developed  the  modern  Furoj)ean 
states.  Until  within  modern  times  these,  with  exceptions 
hereafter  noticed,  were  mostly  governed  by  rulers  clainu'ng 
power  as  absolute  as  that  exercised  by  the  later  Ivoman  em- 
j)erors.  The  rules  of  feudal  tenure  took  tlie  ])lace  of  the  land 
laws  of  the  Romans  and  gave  to  title  to  lands  a  prominence  in 


346  EVOLUTION    OF    GOVERlNMCNTS    AND    LAWS 

the  system  of  laws  which  it  never  had  under  the  Romans. 
With  the  latter  the  slave  was  a  more  prominent  object  than 
the  land  he  tilled.  Under  the  feudal  system  land  tenure  was 
the  basis  of  the  relations  of  all  orders  of  society,  and  the  land 
and  its  produce,  after  the  decay  of  the  industrial  arts,  became 
almost  the  sole  wealth  of  the  people.  The  rank  of  the  lord 
paramount  de]iended  on  the  extent  of  his  holdings  and  the 
numl)er  of  retainers  who  did  him  homage. 

Though  so  large  a  part  of  the  Roman  law  became  obsolete 
by  this  change,  it  still  contained  the  only  compilation  of  rules 
for  the  determination  of  questions  arising  from  the  multi- 
farious dealings  of  men,  from  their  contracts,  their  acts  and 
neglects,  and  with  the  revival  of  learning  and  of  commerce, 
the  great  work  of  Justinian,  having  slept  for  hundreds  of 
years,  became  the  fountain  of  legal  lore  to  which  the  students 
of  the  law  throughout  all  Europe  turned  for  light  and  author- 
ity on  doubtful  points.  The  reasoning  of  the  ancient  writers, 
preserved  in  the  Digest,  still  throws  as  clear  light  on  many 
questions  as  can  be  found  anywhere,  and  carries  with  it  the 
authority  of  jus  nahiralc. 

Five  centuries  of  struggle  between  classes  for  ascendency, 
and  of  a  public  sentiment  that  demanded  from  the  citizen  a 
sacrifice  of  private  interest  and  of  life  when  needed  for  the 
republic,  witnessed  the  rise  of  the  Roman  state,  the  extension 
of  a  system  of  self-government  and  of  laws  over  western 
Europe  and  all  the  countries  bordering  on  the  Mediterranean 
Sea.  It  witnessed  a  high  development  of  agriculture,  the 
growth  of  manufacturing,  mining,  arts  and  commerce,  where- 
ever  Rome's  power  was  recognized,  and  marked  advancement 
in  learning.  Though  Rome  waged  almost  incessant  war  in 
some  (piarters,  the  area  of  peace  extended  with  her  conquests, 
and  an  ever  increasing  proportion  of  the  people  were  enabled 
to  pursue  peaceful  avocations  in  security.  Under  these  condi- 
tions population  multiplied  and  wealth  and  comfort,  though 
most  unequally  distributed,  were  general  throughout  the  state. 
During  these  five  centuries  public  office  was  sought  and  public 
duties  were  performed  for  honor,  not  for  profit.  The  rank 
and   distinction    resulting    from   high   offices   of   state   were 


ROME  •  347 

deemed  so  great  a  reward  that  the  brief  terms  of  yearly 
power  were  eagerly  sought  by  the  most  capable  citizens. 

The  vast  military  organization  and  the  struggle  for  its 
leadership  developed  the  empire.  Five  centuries  of  rulership 
from  a  single  head  through  an  ever  increasing  multitude  of 
highly  paid  officials,  of  gradual  elimination  of  all  self-govern- 
ment and  of  substitution  therefor  of  rigid  laws,  enforced 
often  with  extreme  severity  and  cruelty,  witnessed  the  decay 
of  public  virtue,  the  decline  of  population,  wealth,  learning 
and  all  those  conditions  which  tend  to  make  life  enjoyable. 
Owners  of  vast  estates  with  their  multitudes  of  slaves  af- 
forded no  material  from  which  to  build  an  efficient,  spirited 
army.  The  free  and  vigorous  Germanic  tribes  swept  over 
Gaul,  Spain,  Africa  and  finally  Italy  and  Rome  itself.  The 
magnificent  structure  of  a  firm  and  settled  government  with 
its  code  of  well  developed  laws  governing  so  vast  a  territory 
and  such  a  multitude  of  people,  capable  as  one  might  think 
of  conferring  immeasurable  good  on  innumerable  people,  in 
fact  resulted  in  desolation  and  anarchy.  Why?  Because  it 
was  immoral  and  unprogressive.  It  bred  vice  and  cruelty  in 
the  palace  and  all  who  held  authority  under  it,  and  stifled  the 
political  virtues  of  the  multitude.  It  divided  the  people  into 
masters  and  slaves.  Though  the  eastern  empire  lingered  on 
till  Mahomet  II  took  Constantinople,  and  killed  the  last  of 
his  line,  the  emperor  Constantine  Poleologus,  it  presents  no 
other  features  of  government  or  laws  worthy  of  especial  study. 
It  was  but  another  oriental  despotism,  with  its  record  of  ever 
recurring  cruelty,  treachery,  wars,  murders,  and  occasional 
exhibitions  of  virtue  in  the  palace,  soon  followed  by  the  same 
old  story  of  debauchery,  vice  and  imbecility;  overthrown  at 
last  by  a  new  dynasty  to  again  follow  the  same  dreary  round. 

Though  the  Western  Empire  passed  away  long  before  the 
Eastern,  the  influence  of  Rome  as  a  law-making  and  law-en- 
forcing power  was  perpetuated  through  the  Church,  and  still 
continues.  The  Canon  law  was  more  than  a  collection  of 
moral  precepts  advanced  as  binding  on  the  conscience.  Tt 
covered  a  field  claimed  by  the  Church  as  under  its  government, 
and  came  to  be  accepted  in  more  or  less  of  its  rules  bv  the 


348  EVOLUTION    OF    GOVEKiNMENTS    AND    LAWS 

secular  power  of  all  the  nations  professing  the  Christian  re- 
ligion. It  was  given  form  by  synods  and  councils  of  the  clergy 
and  the  decretals  of  the  Pope.  These  were  put  forward  as 
carrying  a  religious  sanction,  binding  on  all  mankind,  and 
were  enforced  by  the  tribunals  of  the  church  in  accordance 
with  its  practice.  From  the  Canon  law  are  taken  many  of  the 
rules  now  observed  not  only  on  the  continent  of  Europe,  but 
in  Great  Britain,  its  colonies  and  the  United  States,  in  mat- 
ters relating  to  the  domestic  relations.  The  Church  took 
charge  of  the  baptism  of  infants,  the  marriage  of  adults  and 
the  burial  of  the  dead.  In  the  performance  of  these  rites 
there  was  no  distinction  of  rank.  Prince  and  pauper  alike 
were  children  of  the  Church.  With  the  acceptance  of  the 
Christian  religion  the  heathen  prince  bowed  to  the  spiritual 
power  of  the  Pope,  and  received  baptism  at  the  hands  of  a 
priest.  It  was  impossible  to  ])e  a  Catholic  without  acknowl- 
edging some  part  of  the  Canon  Law,  and  thus  the  most  power- 
ful monarchs  found  it  impossible  to  wholly  ignore  the 
temporal  sway  of  the  Pope  within  their  dominions.  The 
principal  heads  of  the  jurisdiction  of  the  ecclesiastical  courts 
were : 

1.  Marriage  and  divorce. 

2.  Legitimacy  of  children. 

3.  Wills  and  the  administration  of  estates  of  deceased 
persons. 

4.  Causes  relating  to  church  ])roperl)-  and  revenues. 

5.  Those  affecting  the  persons  of  the  clergy. 

The  first  two  were  earliest  asserted,  most  generally  aduiit- 
ted  and  continued  to  be  longest  exercised.  The  fourth  and 
fifth  were  most  difficult  to  establish  and  maintain.  Many  of 
the  principles  followed  by  the  ecclesiastical  tril)unals  as  sub- 
stantive law  are  still  retained  in  countries  where  the  jurisdic- 
tion of  church  tribunals  is  confined  to  the  discipline  of  its 
members  in  purely  religious  matters. 


ROME  349 

Authorities 

Momsen  :     History  of  Rome. 

Gibbon :     Decline  and  Fall  of  the  Roman  Empire. 

JMerivale :     Romans  under  the  Empire. 

Livy, 

Tacitus. 

Caesar, 

Sallust. 

Plutarch's  Lives. 

Encylcopaedia  Britannica. 


CHAPTER  XV 

Mediaeval  Europe 

The  empire  of  the  Romans  in  Europe  was  Uniilcd  cm  ihc 
north  and  east  by  the  Danube  and  the  Rhine  after  the  aban- 
donment of  Dacia  in  256,  and  inchided  Britain  and  the  li in- 
lands of  Scotland  in  the  north  and  the  Cherscjnese  on  the 
Black  Sea.  Without  these  boundaries  lay  the  vast  terra  in- 
cognita of  Germany,  Sarmatia  and  the  northern  peninsula. 
Of  the  early  history  of  this  unknown  country  we  know  only 
what  is  told  by  Greek  and  Roman  historians  in  connection 
with  wars  and  mo\'ements  of  people,  where  Greeks  and  Ro- 
mans came  in  contact  with  Germans,  Getae,  Scyths  and  other 
people  of  the  north  and  east. 

After  their  conquest  Spain  and  Gaul  became  thoroughly 
Romanized,  and  the  country  south  of  the  Danube  with  its 
predominant  Greek  elements  submitted  to  Roman  rulership 
and  laws.  Though  the  empire  was  many  times  shaken  by 
wars  over  the  succession  to  the  imperial  throne,  and  though 
in  the  east  Persia  offered  battle  from  time  to  time,  the  period 
from  the  reign  of  Augustus  to  the  overthrow  of  the  western 
empire  in  the  fifth  century  was  one  of  comparative  peace  and 
security,  yet  not  of  progress.  Agriculture  and  the  useful  arts, 
instead  of  advancing,  fell  into  decay.  Learning  waned  and 
the  ability  to  read  and  write,  which  under  the  republic  had 
become  common,  was  rare.  The  great  works  of  Justinian 
in  the  next  century,  reducing  the  laws  to  form  and  system, 
never  became  generally  known  to  the  people  of  his  exhausted 
and  crumbling  empire. 

Imperial  rule  produced  neither  moral  nor  material  develo]>- 
ment.  Roman  sentiment  never  condemned,  but  rather  de- 
lighted in  bloody  spectacles  and  exhibitions  of  cruelty  and 
barlmrity.  Slavery  lay  at  the  foundation  of  propertv  rights. 
The  ignorant  multitude  applauded  the  lavish  expenditures  and 

350 


MEDIAEVAL  EUROPE  35i 

barbaric  display  of  the  rich.  Neither  the  government  nor  the 
property  system  rested  on  any  moral  basis.  With  the  destruc- 
tion of  the  middle  order  the  integrity  of  the  domestic  system 
was  broken,  and  that  only  sure  repository  of  virtue  and  purity, 
the  family,  was  subjected  to  the  debasing  influence  of  frequent, 
divorces  and  remarriages  at  the  dictation  of  interest  or 
caprice. 

With  the  republic  also  passed  away  that  devotion  to  the 
public  welfare,  which  had  been  the  conspicuous  virtue  of 
Romans  throughout  the  long  and  desperate  struggles  that 
gave  Rome  mastery  of  the  known  world.  This  was  the  Ro- 
man approximation  to  a  conception  of  the  universal  moral 
principle  of  mutual  help.  In  its  place  came  oriental  sordid- 
ness.  Deprived  of  all  participation  in  affairs  of  state,  unless 
as  the  mere  instruments  of  the  imperial  will,  the  ambition  of 
the  citizen  was  to  gain  wealth  and  through  wealth  enjoyment. 
The  sure  fruits  of  successful  effort  in  this  direction  are 
cruelty  and  sensuality,  which  in  turn  bring  disease  and  destruc- 
tion. Out  of  the  darkness  came  the  Germanic  tribes,  whose 
history  no  records  preserve.  With  manners  and  customs 
bearing  more  resemblance  to  those  of  the  Romans  of  the 
early  days  than  prevailed  in  the  empire,  they  attacked  the 
enervated  Romans.  In  the  early  years  of  imperial  rule  the 
vast  resources  of  the  empire  were  such  as  to  render  victory 
over  the  comparatively  insignificant  tribes  sure,  if  not  easy. 
In  the  reign  of  Marcus  Aurelius  an  irrui)tion  of  the  Marco- 
nianni  and  allied  tribes  swept  across  tlie  upper  Danube  over 
Pannonia,  Noricum  and  Rhaetia  to  the  Alps.  Thev  were 
driven  back  after  fourteen  years  of  war.  In  236  the  thereto- 
fore unknown  tribes  of  the  Alemanni  crossed  the  Rhine,  and 
the  Goths  appeared  on  the  Danube.  During  the  civil  wars 
from  the  reign  of  Philip  to  Claudius,  244  to  249,  the  bar- 
barians improved  their  oi>i>ortunities,  and  the  Alemanni  and 
b>anks  poured  into  Gaul  and  Spain  and  even  Africa.  In 
247  the  Goths  crossed  the  Danube  and  overran  Aloesia.  Thrace 
and  Macedonia  and  in  251  defeated  and  killed  the  emi)eror 
Decius.  In  the  reign  of  Valerian  253-260  their  fleets  ap- 
peared on  the  Black  Sea  and  ravaged  the  maritime  towns  of 


352  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Asia  Minor.  In  the  reign  of  Gallienus,  260  to  268,  a  tket  of 
five  hundred  sails  appeared  on  the  coast  of  Greece  and  sacked 
Athens,  Corinth,  Argos  and  Sparta.  In  269  under  the  emp- 
eror Claudius  the  Romans  defeated  and  drove  them  back 
across  the  Danube.  Five  years  later  a  raitl  of  Franks  and 
Alemanni  was  repulsed  on  the  Rhine.  As  a  result  of  these 
conflicts  the  Romans  were  forced  to  recede  and  abandon  Dacia 
and  all  possessions  beyond  the  Rhine  and  Danube  to  the  ad- 
vancing barbarians.  Under  the  vigorous  and  desjwtic  reign 
of  Diocletian  the  integrity  of  the  empire  was  preserved  and 
the  authoritv  of  the  g-overnment  vigorously  maintained,  but 
there  was  no  improvement  in  the  moral  tone  of  either  people 
or  government.  Selfishness  and  want  of  social  \irtue  called 
for  a  better  corrective  than  a  more  vigorous  assertion  of  au- 
thoritv and  an  increased  burden  of  taxation.  The  removal  of 
the  capital  to  the  Bosphorus  was  soon  followed  by  the  division 
into  the  eastern  and  western  empires,  and  by  the  decay  of  im- 
perial authority  throughout  the  west. 

In  376  the  Huns  emerged  from  the  unknown  hives  of  Asia 
and  pressed  against  the  Goths,  who  sought  the  protection  of 
the  emperor.  They  were  allowed  to  cross  the  Danube  and 
settle  in  IMoesia,  but  soon  rose  in  arms  against  their  protectors 
and  in  378  defeated  and  killed  Valens,  overran  Illyricum,  and 
advanced  to  the  gates  of  Constantinople.  Theodosius  made 
peace  with  them  and  took  many  into  the  army.  While  the 
boundaries  of  the  empire  were  nominally  maintained  through- 
out the  fourth  century,  there  was  a  growing  pressure  from 
the  northern  tribes.  As  a  result  of  their  contact  with  the 
Romans,  Goths,  Franks  and  other  nations  acquired  some 
knowledge  of  military  science,  and  learned  to  supplement  the 
hardy  valor  of  their  warriors  with  some  measure  of  discipline 
and  mutual  sui)i>ort.  On  the  other  hand,  civil  wars,  the  de- 
pendence on  mercenary  troops,  the  utter  disappearance  of 
everything  like  unselfish  devotion  to  the  public  welfare,  the 
grinding  burden  of  taxation  levied  to  pay  mercenaries,  many 
of  whom  were  barbarians,  and  to  support  the  vile  profligacy 
of  the  palace  and  the  ever  growing  multitude  of  ofificeholders, 
the  slaxery  or  extreme  poverty  of  all  who  labored,  and  the 


MEDIAEVAL  EUROPE  353 

want  of  courage  and  manhood  in  the  favored  few,  who  dissi- 
pated in  wasteful  hixury  the  best  of  all  the  toilers  produced, 
left  the  empire  enervated  and  spiritless.  Barbarians  who  had 
fought  in  the  armies  of  the  emperors  became  qualified  to 
lead  armies,  and  Alaric,  who  had  been  favored  by  Theodosius, 
led  the  Goths  from  their  settlements  south  of  the  Danube, 
where  many  of  them  had  embraced  the  Christian  religion,  into 
Illyricum  and  Greece  and  thence  into  Italy,  closing"  his  tri- 
umphant career  with  the  sacking  of  Rome  in  410. 

Contemporaneous  with  this  movement  of  the  Goths  there 
was  an  irruption  of  the  Vandals,  Suevi  and  Alani  into  Gaul 
and  thence  int(j  Spain,  where  they  established  permanent  set- 
tlements and  partitioned  the  country  among  the  tribes.  In 
419  Ataulf  as  king  of  the  Visigoths  founded  a  monarch v  in 
southwestern  Gaul.  In  429  the  Vandal  king,  Genseric,  crossed 
into  Africa  with  his  army  and  their  families  and  established 
his  authority  there.  He  was  recognized  by  the  Emperor  soon 
after  and  took  Carthage  in  439.  The  movements  of  these 
Germanic  tribes  were  not  solely  in  the  form  of  attacks,  start- 
ing from  their  homes  beyond  the  great  rivers,  but  were  in 
part  migrations  into  new  homes  assigned  them  by  the  em- 
perors. Goths,  Vandals  and  Franks  learned  Roman  methods 
before  achieving  great  victories.  In  451  the  Huns  under 
Attila  attacked  the  empire  and  invaded  Gaul.  Attila  came  as 
the  ruler  of  a  great  dominion,  including  not  only  Huns  but 
many  German  tribes.  He  drove  the  Goths  before  him.  wli(-> 
in  turn  united  with  the  Romans  and  aided  in  his  defeat.  In 
455  the  Vandals  under  Genseric  invaded  Italy  from  the  south 
and  sacked  Rome.  In  476  Odoacer,  the  Goth,  w^as  proclaimed 
king  by  the  barbarian  mercenaries  in  Italy,  and  although  he 
nominally  recognized  the  authority  of  the  emperor  of  the 
east  and  received  the  style  patrician,  all  real  power  was  in  his 
hands.  Though  a  Goth,  he  recognized  the  Ivoman  laws,  and 
used  the  Roman  system  of  administering  them.  He  took  (^ne- 
third  of  the  lands  of  the  great  proprietors  and  distributed 
them  among  his  followers.  Odoacer  was  overthrown,  not  by 
Romans,  but  by  the  Ostrogoths,  who  under  Tlicodorir  in- 
vaded  Italy  with  their  wives,  children  and  challels   from  tlic 


354 


EVOLUTION'   01-    GOVl-RXMEXTS   AXD  LAWS 


Balkans,    where    they    had    tarried    when    their    hrelhren    the 
Visigoths  moved  westward. 

Theodoric  ruled  Romans  by  Roman  law  and  Goths  in  ac- 
cordance with  their  own  customs.  He  provided  for  his  peo;)le 
from  the  lands  confiscated  by  Odoacer,  a  great  part  of  the 
holders  of  which  had  been  killed  in  battle.  The  Goths  were 
judged  by  their  counts,  and  where  a  controvery  arose  between 
Goth  and  Roman,  the  case  was  heard  by  a  mixed  court.  He 
had  his  body  guard  and  its  chief  officers  of  Goths  and  also 
a  full  establishment  of  Roman  officials.  Theodoric  extended 
his  rule,  not  only  over  Italy,  Init  also  over  the  Germanic  i>eo- 
[)le  in  Rhaetia  and  Noricum,  and  over  southern  Gaul  and 
Sjiain.  The  traditions  of  the  Lombards  related  that  they  had 
dwelt  on  the  Scandinavian  peninsula,  whence  they  had  crossed 
the  Baltic  into  Germany  and  pressed  their  way  down  to  the 
Danube.  In  552  Justinian's  general  Narses  employed  5,000 
cf  them  as  auxiliaries  in  his  war  in  Italy,  w'here  they  learned 
of  its  fertility  and  desolation.  In  568,  under  the  leadership 
cf  Alboin,  whom  they  had  elected  king,  the  wdiole  nation,  men, 
women,  children,  slaves  and  chattels,  crossed  the  Alps  and 
descended  into  V^enetia,  whence  they  spread  over  northern 
Italy.  They  came  with  primitive  German  customs,  divided 
into  tribes  or  clans  led  by  elective  chiefs  called  Aldanes. 
The  tribes  united  in  choosing  a  king  when  war  rendered  con- 
cert of  action  necessary,  but  his  authority  seems  to  have  prac- 
tically terminated  when  war  was  over.  After  Alboin  had  l)een 
murdered  and  Clepho,  his  successor,  killed  by  a  slave,  they 
chose  to  do  without  a  king  for  ten  years,  and  the  tribes  ranged 
over  Italy  and  across  the  Alps  into  Provence.  Settlements 
were  made  by  them  in  various  parts  of  the  peninsula  along- 
side the  Romans  and  remnants  of  the  Goths.  The  Lombards 
were  fierce  and  warlike,  but  never  established  a  firm  dominion 
over  all  Italy,  though  they  l)ecame  the  dominant  portion  of  its 
population.  They  retained  their  ancient  customs  and  laws 
more  persistently  than  the  Goths,  and  in  643  their  king, 
Rothari,  published  a  compilation  of  their  laws,  which  was 
promulgated,  not  as  emanating  from  his  authority  alone,  but 
with  the  counsel  of  his  wifau  and  the  assent  of  the  armed 


MEDIAEVAL  EUROPE  355 

folk-moot  of  the  Lombard  nation.  It  prescribes  the  zvercgcld 
to  be  paid  for  homicide,  laws  against  armed  violence,  rules  of 
inheritance  and  of  the  obligation  of  the  follower  to  his  lord, 
and  for  judicial  combats.  The  people  were  divided  into  free- 
men and  aldu,  serfs,  who  tilled  the  soil.  It  was  the  Lombard 
invasion  that  caused  the  imperial  governors  to  remove  from 
Rome  to  the  inaccessible  Ravenna,  where  the  shadow  of  im- 
perial power  lingered  for  a  time,  circumscribed  within  a  very 
narrow  compass. 

During  the  reign  of  Odoacer  in  Italy  the  Salian  Franks 
under  their  king,  Clovis,  invaded  Gaul  from  their  home  on 
the  east  of  the  Rhine.  By  force  of  arms  he  extended  his  do- 
minions on  l)oth  sides  the  Rhine,  and  overthrew  the  empire 
of  the  \^isigoths  in  Gaul.  He  ruled  as  a  fierce  and  bloody 
soldier.  The  Merovingian  dynasty  founded  by  him  lasted 
nominally  from  481  to  751.  With  the  vast  increase  in  the 
territory  ruled  by  Clovis  and  his  successors  came  also  a 
corresponding  increase  of  arbitrary  power.  The  ancient  Ger- 
manic custom  of  deciding  public  questions  in  general  assem- 
blies of  the  people,  which  was  entirely  practicable  for  a  small 
compact  tribe,  speaking  a  common  language,  l)ecame  impos- 
sible when  dominion  was  extended  over  so  large  a  territory, 
including  many  tribes  differing  in  language  and  customs  from 
each  other.  The  power  to  rule  was  acquired  through  military 
supremacy,  and  naturally  the  king  became  a  military  despot, 
who  soon  ceased  to  consult  even  the  warriors  of  his  native 
race.  The  king  was  distinguished  from  his  followers  by  wear- 
ing long  hair,  a  crown  and  using  a  kingly  spear.  After  the 
conquest  of  Gaul  Clovis  assumed  the  patrician  rol)e  of  Rome. 
At  his  palace  he  was  surrounded  by  his  companions  in  arms, 
bound  to  his  person  l)y  a  special  oath  of  fidelity.  In  the 
royal  household  the  chief  was  styled  Mayor  of  the  Palace,  and 
was  the  highest  official  under  the  kin^.  After  him  came  the 
Marshal,  having  charge  of  the  royal  stables,  the  Comes  Palafii 
his  legal  adviser  and  assessor,  the  Treasurer  and  Royal  Sec- 
retary. These  exercised  their  functions  under  the  king's  com- 
mands at  the  palace  or  on  anv  nn'ssion  on  which  he  might 
send   them.      The  kingdom   was   dixidcd    into   counties,   over 


356  EVOLUTION   OF  GOVERNMENTS   AND  LAWS 

each  of  which  was  placed  a  couiiL  In  the  (ieniianic  i)art  of 
the  kingdom  the  counties  corresponded  with  the  tribes  and 
in  the  Roman  with  a  city  with  its  dependent  district.  The 
count  was  mihtar}-  leader,  judge  and  taxing  officer.  Several 
counties  were  under  a  duke  in  some  parts  of  the  realm,  who 
became  the  commander  of  the  combined  military  forces  with 
general  control  over  the  counts.  The  ctjunts  and  dukes  were 
assisted  by  deputies,  who  lilled  their  ])laces  when  absent. 
Beneath  these  there  was  a  headman  over  eacli  of  the  hundreds 
into  which  a  county  was  divided,  who  was  a  judge  in  petty 
causes  in  time  of  peace  and  head  man  of  his  hundred  in  time 
of  war.  At  stated  periods  the  count  went  into  each  hundred 
and  disposed  of  causes  in  a  public  assembly,  Ijeing  assisted  by 
chief  men  of  the  hundred,  whom  he  called  to  his  aid.  In 
this  court  the  count  exercised  full  power  and  disposed  of  life 
and  property.  Great  crimes  were  punished  with  death,  but 
the  family  of  a  murdered  man  might  condone  the  offense  on 
the  payment  of  a  sum  of  money.  Trials  were  conducted  in  va- 
rious forms,  compurgations  and  combats  were  allowed  among 
the  Ripuarians,  but  not  among  the  Salic  Franks,  and  ordeals 
were  resorted  to  as  well  as  the  testimony  of  witnesses.  Be- 
sides the  officers  named  the  king  had  his  bailiffs  in  charge  of 
the  crown  lands,  from  which  he  derived  an  important  part 
of  his  revenue.  Aside  from  these  the  revenues  of  the  king 
Vv'ere  derived  from  custom  dues  on  the  frontiers,  fines  and 
compositions  in  the  courts  and  taxes  charged  against  each 
county,  collected  and  remitted  by  the  count. 

By  the  time  of  Clovis  German  people  were  scattered 
throug^hout  those  parts  of  Europe  that  had  been  dominated  bv 
the  Romans,  and  German  customs  variously  modified  by  new 
environments,  ripened  into  laws.  Even  where  the  Roman 
element  was  dominant  changed  conditions,  the  decay  of  learn- 
ing and  stagnation  of  all  commercial  and  industrial  pursuits 
led  to  innovations  in  the  law^  The  diversity  of  customs  and 
the  tenacity  with  which  the  invaders  held  to  their  own  led  tc) 
the  application  to  each  person  of  the  law  of  the  tribe  to 
which  he  belonged  rather  than  the  laws  of  the  territorv  which 
lie  inhabited.      The  customs  of   illiterate  barbarians  did   not 


MEDIAEVAL  EUROPE  357 

cover  anything  like  the  field  of  the  Roman  law  but  were 
adapted  to  their  needs  and  were  rules  of  action  and  of  right 
which  they  had  learned  in  their  tribes.  Great  diversity  of 
conditions,  lack  of  a  government  with  power  extending  over 
any  large  territoiy  for  any  considerable  period,  poverty,  lack 
of  intercourse  between  distant  people  and  general  ignorance 
and  illiteracy  w-ere  conditions  which  naturally  led  to  very 
great  diversity  of  customs  and  local  laws.  From  Scandinavia 
to  Spain  and  Italy  the  people  of  each  town  and  community  of 
any  considerable  size  had  its  own  peculiar  usages.^  To  col- 
late and  trace  the  changes  in  even  those  rules  that  became  the 
local  laws  for  considerable  districts  would  be  a  stupendous 
task.  Traces  of  many  of  these  local  customs  may  still  be 
found  in  existing  laws,  but  increasing  learning  and  intercourse 
constantly  tend  to  uniformity  of  laws. 

The  spirit  of  the  German  people  had  always  been  opposed 
to  polygamy.  Clovis  became  a  Christian  and  was  baptized, 
but  domestic  virtue  was  something  almost  unknown  in  the 
palaces  of  the  Merovingians.  The  Franks  maintained  their 
own  system  of  laws,  which  Montesquieu  says  were  compiled 
after  quitting  their  own  country  by  the  sages  of  the  nation.^ 
and  the  customs  of  the  German  tribes  which  he  subdued  were 
also  compiled  by  Clovis'  order.  The  Franks  had  reached  that 
stage  where  title  to  the  land  on  which  the  possessor  dwelt  was 
recognized,  and  the  Salic  law  of  descent  was:  "i.  If  a  man 
dies  without  issue  his  father  or  mother  shall  succeed  him. 
2.  If  he  has  neither  father  nor  mother  his  brother  or  sister 
shall  succeed  him.  3.  If  he  has  neither  brother  or  sister  the 
sister  of  his  mother  shall  succeed  him.  4.  If  his  mother  have 
no  sister  the  sister  of  his  father  shall  succeed  him.  5.  If  his 
father  has  no  sister  the  nearest  relation  by  the  male  side  shall 
succeed.  6.  Not  any  part  of  the  Salic  land  shall  pass  to  the 
females,  but  it  shall  belong  to  the  males,  that  is  the  male 
children  shall  succeed  their  father. "'"^  The  kingdom  was 
treated  as  the  ])ropcrty  of  the  king,  and  its  integritv  was  not 

'  C'ontinental  Legal  History  Series,  Vol.  i. 
'Spirit  of  Laws,  p.  196. 
'  Id.,  p.  326. 


358  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

protected  by  a  rule  uf  succession  which  passed  the  undivided 
power  from  hand  to  hand.  On  the  death  of  Clovis  his  four 
sons  foui^ht  for  supremacy,  and  similar  civil  wars,  the  sole 
excuse  for  which  was  the  ambition  of  rulers,  were  fought  in 
succeeding-  generations.  The  Merovings  were  bloody,  treacher- 
ous and  licentious,  and  like  most  other  dynasties  of  absolute 
rulers,  later  generations  inherited  the  vices  without  the  ability 
of  the  founder.  Though  the  nominal  rule  of  the  kings  con- 
tinued for  four  generations  thereafter,  the  real  powers  oif 
government  were  assumed  by  the  mayor  of  the  palace  in  642, 
from  which  time  forward  the  kings  were  imbeciles  and  the 
names  prominent  in  history  are  Pepin  and  Charles  M artel, 
mayors  of  the  palace,  the  latter  of  whom  commanded  in  the 
great  battle  ('/S2)  which  turned  back  the  tide  of  Mohamme- 
dan invasion. 

The  history  of  Spain  under  the  rule  of  the  Visigoths  is  olj- 
scure.  Though  they  with  the  Suevi  and  Alani  gained  a  lodg- 
ment there  early  in  the  fifth  century,  it  was  not  until  after 
their  defeat  by  Clovis  at  Poitiers  that  thev  transferred  the 
seat  of  their  goxernment  from  Gaul  to  Spain,  about  510. 
The  Goths  constituted  but  a  small  part  of  the  population. 
Their  government,  though  monarchical,  was  elective,  and  the 
subject  Romans  were  ruled  by  Roman  law^  The  church  early 
gained  a  strong  hold  on  the  Spanish  people,  and  in  course  of 
time  the  Goths,  who  were  Arians,  through  motives  of  policy 
were  led  by  their  king  to  adopt  the  orthodox  faith.  The  suc- 
cession to  the  throne  was  the  occasion  of  a  great  number  of 
civil  wars.  The  people  at  the  time  of  the  Saracen  invasion  in 
711  were  divided  into  a  few  very  rich  and  a  dependent  multi- 
tude of  slaves.  They  offered  but  a  weak  resistance  to  the 
Mohammedans,  who  completed  the  conquest  of  the  country 
within  the  next  two  years  and  put  a  final  end  to  the  Visigothic 
rule.  The  division  of  the  state  for  governmental  purposes 
was  similar  to  that  of  Gaul,  the  ancient  Roman  civitatcs  being 
used  as  the  basis  of  local  government. 

The  long  and  vigorous  reign  of  Charlemagne,  768  to  814, 
stands  out  in  bold  relief  in  a  long-  period  of  darkness.  Of  his 
eminent  abilities  there  can  be  no  doubt,  and  while  his  morals 


MEDIAEVAL  EUROPE  359 

lacked  much  of  even  an  approximation  to  virtue,  he  yet  was 
far  better  than  his  Merovingian  predecessors.  He  not  only 
restored  to  the  kingdom  all  that  had  at  any  time  before  be- 
longed to  it,  but  for  the  first  time  in  history  he  joined  Ger- 
many, Gaul,  Italy  and  northern  Spain  in  a  single  empire. 
Though  his  government  was  administered  on  substantially  the 
same  system  as  that  of  his  predecessors,  it  was  infused  with 
vitality  through  his  remarkable  energy  and  industry.  He  was 
not  a  stranger  to  any  part  of  his  vast  empire.  Not  only  did 
he  visit  every  quarter  in  person  but  his  special  Missi  Dominici, 
traveling  legates,  were  constantly  bringing  him  information 
of  the  condition  of  affairs  in  every  part  of  the  realm.  Like 
all  other  rulers,  who  before  his  time  had  acquired  extensive 
dominion  in  the  western  empire,  he  felt  the  charm  of  the 
Roman  imperial  name.  In  800  Pope  Leo  III  crowned  him  in 
St.  Peter's  as  Augustus,  Emperor  of  the  Romans.  The  re- 
ceipt by  Charles  of  this  title  at  the  hands  of  the  Pope  carried 
with  it  a  recognition  on  the  part  of  the  military  ruler  of  the 
west  of  the  spiritual  supremacy  of  the  Poi>e,  and  throughout 
many  succeeding  centuries  this  recognition  carried  vastly 
more  weight,  and  the  precedent  was  of  vastly  more  value  to 
the  Pope,  than  the  coronation  was  to  Charles,  whose  dominion 
had  resulted  from  his  own  capacity  without  important  aid 
from  the  church.  In  another  aspect  this  recognition  of  spirit- 
ual authority  was  important.  It  was  followed  by  a  recogni- 
tion of  the  need  -of  a  moral  basis  for  the  exercise  of  authority. 
He  required  all  his  subjects  above  the  age  of  twelve  to  take 
?.  new  oath  of  allegiance  to  him  as  Emperor,  to  be  administered 
by  the  local  clergy,  who  were  required  to  warn  all,  "That  this 
vow  of  homage  was  not  merely  a  promise  to  be  true  to  the 
Emperor  and  to  serve  him  against  his  enemies,  but  a  promise 
to  live  in  obedience  to  God  and  His  laws,  according  to  the 
best  of  each  man's  strength  and  understanding.  It  was  a  vow 
to  abstain  from  theft,  oppression  and  injustice,  no  less  than 
from  heathen  j)racticcs  and  witchcraft,  a  vow  to  do  no  wrong 
to  the  rhnrclies  of  God  nor  to  injure  widows  and  orphans,  c^f 
wlioni  the  ['"niperor  is  the  chosen  proctector  and  guar(b'an." 
Me  taught  submission  to  the  moral  law  and   recognized  the 


36o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

church  as  the  representative  of  the  Holy  limpire.  The  gov- 
ernment of  Charles,  like  that  of  his  predecessors,  was  thor- 
oughly despotic  in  character.  It,  like  all  des[>otisms,  derived 
its  qualities  from  the  ruler.  To  carry  his  will  into  effect  he 
selected  men  who  carried  out  his  policies,  and  like  every  other 
great  leader  he  had  a  keen  perception  of  the  merits  and  capa- 
cities of  men.  To  preserve  the  system  in  its  vigor  the  energy 
and  capacity  of  Charles  himself  was  required.  It  has  been  the 
fate  of  every  despotism  to  have  the  successors  of  a  great 
founder  wanting  in  some,  and  often  in  all,  the  essential  quali- 
ties which  render  despotism  a  refuge  from  anarchy.  Under 
the  weak  and  good  natured  reign  of  his  son  Louis  the  empire 
crumbled.  The  practice  of  dividing  it  as  an  inheritance  among 
the  children  of  the  ruler  obtained  and,  coupled  with  revolts  of 
local  rulers,  resulted  in  the  complete  dismemberment  of  the 
state  after  the  death  of  Louis.  The  acceptance  of  the  im- 
perial crown  from  the  hands  of  the  Pope  by  Charles  bore  the 
full  measure  of  its  fruits  under  the  reign  of  the  pious  and 
well  meaning  Louis,  who  acknowledged  the  supremacy  of  the 
Pope  in  spiritual  affairs  without  exacting  in  return,  as  his 
father  had  done,  an  acknowledgment  by  the  Pope  of  the  tem- 
poral superiority  of  the  emperor.  The  submissiveness  of 
Louis  to  Papal  authority  and  his  exemption  of  church  prop- 
erty and  its  tenants  from  taxes  and  military  service,  creating 
the  tenure  known  as  frank  almoin,  which  required  merely 
prayers  for  the  welfare  of  the  emperor  and  his  children  and 
the  empire,  w^as  of  immense  advantage  to  the  church  and 
correspondingly  weakened  the  state.  The  great  empire  of 
Charles  was  divided  among  his  grandsons,  and  the  Prankish 
principle  of  division  was  continued  among  their  descendants. 
The  right  to  rule  was  treated  as  the  property  of  the  ruler, 
rather  than  a  trust  exercised  for  the  good  of  the  people.  This 
breaking  into  fragments,  with  constant  warfare  between  rival 
claimants  of  territory,  became  chronic  among  the  Carlovin- 
gians,  as  it  had  been  w-ith  the  Merovingians. 

In  the  latter  part  of  the  eighth  century  the  Vikings  made 
their  appearance  in  England  and  on  the  coasts  of  the  Prankish 
empire.     They  were  a  hardy  race  of  navigators,  dwelling  on 


MEDIAEVAL  EUROPE  361 

the  Danish  and  Scandinavian  peninsulas,  whence  they  issued 
in  growing-  numbers  and  with  increasing  boldness  to  pillage 
those  parts  of  the  country  must  accessible  from  their  boats. 
From  the  time  of  Tacitus  they  had  been  noted  as  sailors,  and 
they  now  appeared  as  pirates  and  most  determined  warriors. 
In  an  age  when  might  made  right,  it  is  perhaps  invidious  to 
designate  them  by  a  name  which  is  now  so  opprobrious.  It  is 
difficult  to  draw  a  clear  line  between  their  robberies  and  those 
cf  the  organized  forces  on  the  continent.  That  they  were  in 
the  lead  of  all  other  people  as  navigators  is  clear,  and  it  is 
said  that  they  fought  with  superior  arms  and  protected  by 
coats  of  mail.  That  their  object  in  their  raids  was  plunder 
rather  than  the  acquisition  of  land,  and  that  they  scattered  in 
numerous  fleets  and  attacked  widely  distant  places  under  sepa- 
rate leaders,  exhibits  a  difference  in  methods,  if  not  in  prin- 
ciple. Their  raids  increased  in  numbers  and  boldness,  till  in 
911  Charles  the  Simple  granted  them  an  ample  district  be- 
tween the  Somme  and  Seine,  on  condition  that  it  should  be 
held  as  a  fief  under  his  sovereignty.  The  Norsemen  did 
homage  as  his  vassals,  though  with  ill  grace,  and  accepted  the 
Christian  religion.  After  this  settlement  the  piratical  inroads 
were  substantially  at  an  end. 

We  have  seen  how,  ])roceeding  from  Italy  as  a  base,  the 
Roman  power  was  extended  in  all  directions,  and  how  Roman 
rule  was  imposed  on  the  natives  of  Spain,  Gaul,  Britain  and  a 
portion  of  Germany.  We  have  also  seen  how  inccjming  waves 
from  the  unknown  regions  of  new  and  unsubdued  people  swept 
back  from  north  and  east  over  all  the  western  portion  of  the 
empire,  how  Goths  and  Lombards  became  intermingled  with 
the  ancient  people  of  Italy,  how  Vandals,  Goths  and  Sue\i 
were  settled  in  Spain,  and  all  overthrown  by  the  Saracens, 
how  successive  irruj)tions  of  Germanic  j)eople  had  broken  into 
Gaul,  with  the  final  establishment  of  the  great  I'Vankish  em- 
pire, and  how  as  a  result  of  these  movements  of  i>eo])le  the 
empire  had  fallen  and  the  Romans  had  ceased  to  be  the  ruling 
element  in  either  fjuarter.  In  our  effort  to  gain  a  clear  view 
of  the  forces  which  were  at  work  during  what  is  regarded  as 
the  flark  ages  of  Kun^pean  hist(jry,  we  have  still  to  trace  the 


.362     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

4 
growing  power  and  inlluence  of  the  church  and  the  monastic 
institutions.  Out  of  the  Asiatic  possessions  from  the  incon- 
spicuous Judean  province  was  brought  to  Rome  the  rehgious 
and  moral  teachings  of  a  person  so  obscure  as  not  to  be 
known  to  the  Roman  repubHc  of  his  time.  That  rehgion 
proclaimed  the  universal  brotherhood  of  man  and  fatherhood 
of  God.  The  Jews  looked  for  a  tem^x^ral  ruler  in  their  Mes- 
siah, who  should  establish  their  supremacy  over  the  other  na- 
tions of  the  earth.  They  failed  to  grasp  the  meaning  of  his 
teachings.  They  did  not  perceive,  nor  have  Christians  in  suc- 
ceeding ages  realized,  that  the  moral  principles  he  announced 
contain  the  vital  principle  on  which  human  relations  every- 
where and  at  all  times  should  be  regulated,  that  these  prin- 
ciples are  the  universal  constitution,  on  which  all  governments 
and  all  laws  must  be  based  in  order  to  develop  the  highest 
type  of  human  society  and  the  maximum  of  human  happiness. 
Though  Caesar  held  power  of  life  and  death  over  all  his  vast 
empire,  and  his  w'ill  was  law  to  the  100,000,000  or  more  in- 
habitants of  the  countries  ruled  from  Rome,  Christ's  sermon 
on  the  mountain  to  a  few  followers,  unheard  and  unknown  to 
the  great  multitude  of  people  of  his  time,  has  exercised  an  in- 
fluence on  the  people  of  after  times  incomparably  superior  to 
that  of  all  the  Caesars.  Yet  its  full  meaning  and  significance 
are  but  dimly  perceived  and  imperfectly  understood,  even  by 
the  wisest,  and  to  this  day  rulers  and  leaders  in  the  most  en- 
lightened lands  are  regarded  as  exempted  from  obedience  to 
the  golden  rule,  "Therefore  all  things  whatsoever  ye  would 
that  men  should  do  to  you,  do  ye  even  so  to  them,  for  this  is 
the  law  and  the  prophets."  The  impression  seems  to  prevail 
that  the  law  of  necessity  applies  with  especial  and  controlling 
force  to  rulers  and  law  makers,  and  exempts  them  from  obed- 
ience to  the  moral  law.  The  unselfishness  and  self-sacrificing 
spirit  of  Christ  are  somewhat  distasteful  to  the  average  man, 
and  self  denial  is  a  virtue  seldom  looked  for  and  more  seldom 
found  in  high  stations. 

Whether  the  moral  teachings  of  Christ  be  regarded  as  pri- 
marily for  the  happiness  of  the  souls  of  men  in  a  future  state, 
or  as  essential  to  human  welfare  in  this  life,  is  unimportant  for 


MEDIAEVAL  EUROPE  363 

our  present  purpose,  for  we  are  only  concerned  with  the  moral 
law  as  a  guide  to  human  conduct.  There  seems  little  if  any 
room  to  doubt  that  Christian  doctrines  were  taught  at  Rome 
by  the  apostles  Peter  and  Paul  with  some  success,  and  that 
they  gathered  about  them  a  community  of  converts  to  the 
Christian  faith.  In  like  manner  congregations  of  believers 
were  g-ained  in  the  great  centers  of  population  in  the  east  and 
in  Greece.  The  leading  characteristics  of  the  earliest  Chris- 
tian societies  were  the  spirit  of  brotherhood  and  equality,  and 
contempt  for  power,  wealth  and  social  distinction.  For  the  first 
three  centuries  Christians  were  persecuted,  and  no  attempt 
was  made  to  gain  temporal  power  with  Christianity  as  a  foun- 
dation. Nothing  could  present  a  stronger  contrast,  than  the 
brutality  and  viciousness  of  Roman  society  as  exhibited  at  the 
public  combats  and  butcheries  in  the  arena  and  the  licientious- 
ness  and  depravity  in  the  palace  and  houses  of  the  wealthiest 
and  most  prominent  citizens,  and  the  humble  and  devout 
Christian  societies  of  the  time  of  Nero.  With  growth  in 
numbers  came  increased  influence  and  ambition  to  lead.  As 
early  as  313  the  existence  oif  ecclesiastical  corporations  with 
common  property  v;as  recognized  by  the  edict  of  Milan,  and 
in  321  their  right  to  acquire  property  by  bequest  was  con- 
firmed. With  the  conversion  of  Constantine  the  days  of  ex- 
treme Christian  humility  were  over,  and  the  clergy  lalx)red  to 
add  to  the  wealth  and  power  of  the  church  with  such  success 
that,  in  370,  Valentinian  deemed  it  necessary  to  prohibit  the 
clergy  from  receiving  bequests  from  women.  Not  from  any 
inherent  weakness  of  principles,  but  from  the  influences  at 
work  on  the  men  who  became  the  representatives  of  Chris- 
tianity, the  purity  of  its  doctrines  became  obscured,  and  the 
every  day  worship  in  the  churches  became  debased  to  the  ado- 
ration of  images  and  relics,  to  worship  of  the  virgin  and  the 
saints,  of  spurious  pieces  of  the  true  cross  and  other  visible 
objects,  supposed  to  be  possessed  oif  mysterious  power  bv 
reason  of  their  association  with  some  miraculous  manifesta- 
tion. Purity  of  life,  so  distasteful  to  the  fierce  and  head- 
strong barbarians,  could  not  be  enforced,  so  in  lieu  of  it  the 
church  exacted   tri])ute,   penance,   and   above  all    faith   in   the 


364  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

vicarious  atonement,  and  granted  aljsolution  from  sins  com- 
mitted. ]'Ilaborate  cerenKjnies,  altars,  images,  sul)stitutes  lor 
tke  idolatries  of  the  barbarians,  obscured  and  took  the  place  of 
the  worship  of  the  unseen,  living  spirit,  and  of  an  effort  to 
follow  the  moral  law  in  its  purity.  As  early  as  the  second 
centuiy  there  seems  to  have  been  some  claim  o^f  sui>eriority 
over  other  churches  put  forth  by  that  of  Rome.  Little  by 
little  the  Roman  bishop  assumed  authority  over  the  other 
churches.  At  the  council  of  Nicaea,  325,  the  rank  of  the  three 
patriarchates  was  established,  first,  Rome,  second,  Alexandria, 
third,  Antioch.  By  the  end  of  the  fourth  century  the  claim  of 
precedence  had  gained  such  recognition,  that  questions  arising 
in  the  various  churches  of  the  west  were  submitted  to  the  Ro- 
man bishop,  whose  decretals  were  accepted  as  authoritative, 
and  Innocent  I,  402-417,  conceived  the  universal  ecclesiastical 
supremacy  of  Rome.  The  establishment  of  this  supremacy 
in  practice  was  of  slow  and  uneven  growth.  Leo,  440-461, 
established  the  right  of  appeal  by  a  bishop  from  the  decision 
of  his  metropolitan  to  Rome,  and  thereby  assumed  pontificial 
authority  to  pass  judgment  on  the  acts  and  claims  of  the 
metropolitans  as  his  inferiors.  Under  Gregory  I,  590-604, 
the  territorial  possessions  of  the  church  were  greatly  increased, 
and  under  his  vigorous  administration  the  power  and  influence 
of  the  pontificate  strengthened.  Prior  to  Gregory  III  the 
privileges  of  the  popes  had  been  recognized  and  confirmed  by 
the  eastern  emperor,  but  in  731  Gregory  excommunicated  the 
Iconoclasts,  and  in  return  the  Emperor  confiscated  the  church 
properties  within  the  territories  which  still  submitted  to  his 
rule.  Thenceforth  the  papal  authority  ceased  to  be  in  any 
degree  dependent  on  the  imperial.  In  752  Pepin  was  anointed 
and  crowned  king  of  the  Franks  by  the  papal  legate  Boniface, 
and  in  754  he  handed  over  to  Pope  Stephen  III  an  extensive 
territory,  which  he  had  wrested  from  the  Lombards,  including 
Ravenna,  to  be  held  and  enjoyed  by  the  pontiffs  of  the  apos- 
tolic see  forever,  and  this  grant  was  largely  increased  by  his 
successor  Charlemagne.  Thus  in  the  course  of  about  750 
years  from  the  days  of  Peter  and  Paul,  who  laid  no  claim  to 
worldly  power,  the  head  of  the  church  extended  his  power 


MEDIAEVAL  EUROPE  365 

over  the  great  ecclesiastical  organization  which  had  spread 
over  Europe,  and  became  a  temporal  ruler  over  a  considerable 
territory.  At  the  end  of  the  eighth  century  the  head  of  the 
church  was  not  only  a  temporal  ruler  over  the  papal  states  in 
Italy,  but  he  assumed  the  power  to  dispense  with  the  ob- 
servance of  the  canonical  law,  under  conditions  to  be  de- 
termined by  himself,  and  the  vast  power  of  conferring 
privileges  on  monastic  and  church  establishments  throughout 
the  dominions  of  the  western  monarchies.  The  choice  of 
bishops  was  subjected  to  his  approval  and  disputes  on  mat- 
ters ecclesiastical  were  appealable  to  Rome,  where  full  juris- 
diction was  asserted.  The  conquests  of  the  Saracens  in  the 
east  removed  the  rivalry  of  Antioch,  Jerusalem  and  Alex- 
andria, and  the  west  became  the  seat  of  that  faith  which  was 
born  in  Asia.  The  coronation  of  Charlemagne  by  the  Pope 
was  an  assumption  on  the  part  of  Leo  of  spiritual  superiority 
over  the  ruler  of  the  "Holy  Roman  Empire."  Leo  recognized 
the  temporal  power  of  Charles,  and  in  return  Charles  acknowl- 
edged the  spiritual  rule  of  Leo.  The  weak  Louis  became  sub- 
servient to  the  head  of  the  church.  Following  this  exaltation 
of  the  head  of  the  church  to  temporal  power  came  a  period  of 
misfortune  and  of  moral  degradation,  in  which  the  pontificate 
became  a  subject  of  corrupt  bargaining,  from  which  it  did  not 
recover  till  the  election  of  Gregory  the  V,  996-999.  Though 
in  course  of  time  despotic  characters  were  developed,  the  office 
of  Pope  was  always  elective,  and  the  prevailing  spirit  of  the 
church  was  democratic. 

Another  product  oi  the  Christian  religion  was  the  monastic 
establishments,  which  exercised  such  a  profound  influence 
thr(nigh(nit  Europe  during  the  darkest  period  of  its  history. 
The  life  of  the  ascetic  hermit  h;ul  been  recommended  by 
Cautama  as  that  most  favorable  to  spiritual  |)urification,  and 
religious  societies,  similar  to  the  monastic  institutions  of  the 
Christians,  were  formed  uncU'r  his  teachings  and  1)ecame  very 
numerous  among  lUuldhists.  The  leading  resemblance  of  the 
Christian  and  l>u<ldhist  societies  was  in  the  close  association 
of  men,  whose  li\es  were  dex'oted  to  religious  exercises  and 
aims,   dwelling  together   in   celibacv   under   rigorous   rules   of 


366  EVOLUTION*   OF  GOVKRXMEXTS  AXD  LAWS 

life,  to  which  they  xohintaril}'  suhniiltcd.  The  leachn_^-  (HlTer- 
ence  was,  that  the  doors  of  the  lUiddhist  institutions  were  open 
to  pass  out  as  well  as  in,  and  the  indixidual  was  at  all  times 
loaded  with  the  burden  of  his  own  salvation  through  good 
deeds  and  purification  of  his  spirit,  while  with  the  Christians 
the  doors  w^ere  closed  to  those  who  would  withdraw,  and 
spiritual  salvation  was  made  to  depend,  not  on  deeds  and  in- 
dividual merit,  but  on  ifaith  and  conformity  to  the  require- 
ments of  the  church.  From  the  most  ancient  times  the  life 
of  the  hermit  has  been  adopted  by  men  of  a  certain  peculiar 
cast  of  mind,  and  early  in  the  history  of  Christianity  solitary 
dwellers  in  the  desert  gained  great  renown  for  sanctity,  among 
the  most  noted  of  whom  were  Paul  and  Anthony,  natives  of 
Egypt  in  the  third  and  fourth  century. 

The  first  great  monastic  society  was  founded  by  Pachomius 
on  the  island  of  Tabennae  in  the  Nile  in  the  first  half  of  the 
fourth  century.  Under  the  rules  of  the  order  the  monks  were 
distributed  into  cells,  each  containing  three  inmates,  known  as 
syncclli.  A  large  cluster  of  such  cells  was  called  a  laiira,  in 
which  was  one  common  place  for  meals  and  assemblies.  Work 
and  food  were  apportioned  to  each  according  to  his  strength, 
and  the  dress  was  regulated,  consisting  of  a  linen  tunic  with 
a  goat  skin  upper  garment,  which  they  were  not  permitted  to 
take  off  at  meals  or  in  bed,  but  only  when  assemblied  for  the 
eucharist.  They  w'ere  divided  into  twenty-four  groups,  and 
each  group  into  bands  of  tens  and  hundreds  mider  decurions 
and  centurions,  all  under  an  Abbot.  \vho.  as  such  institutions 
multiplied,  was  subject  to  the  Superior.  The  finances  were 
managed  by  a  steward.  Their  usual  food  was  bread  and 
water,  with  occasional  oil,  salt,  fruit  and  vegetables  for  luxu- 
ries. Meals  were  eaten  in  silence,  each  wearing  a  cowl  to 
hide  his  face.  They  assembled  twice  daily  fior  common 
praver,  and  for  communion  on  Saturdays  and  Sundays.  They 
tilled  their  lands  and  \\o\t  mats,  baskets  and  in  course  of 
time  manuifactured  many  other  articles  for  sale  for  the  com- 
mon fund.  Pachomius  induced  his  sister  to  found  a  convent 
of  nuns  under  similar  rules.  At  the  time  of  his  death  Pach- 
omius had  1,400  monks  in  his  own  monastery  and  7,000  under 


MEDIAEVAL  EUROPE  367 

his  authority.  The  order  spread  rapidly  in  Africa,  Asia,  and 
then  into  Italy  and  western  Europe.  By  the  fifth  century 
the  numbers  are  said  to  have  increased  to  more  than  100,000 
in  Egy^pt  alone. 

In  529  Benedict  drew  up  his  celebrated  code  of  rules,  which 
became  the  law  of  the  very  numerous  Benedictine  monasteries 
which  spread  over  western  Europe.  Worship,  study,  work, 
obedience,  silence  and  humility,  were  the  leading  ideas  in- 
culcated. This  code  was  elaborated  in  seventy-three  chapters. 
It  exhibits  a  strange  mixture  of  excellent  principles  and 
vicious  ones.  Monasteries  formed  under  this  code  were  vol- 
untary associations  of  men,  who  were  required  to  dispose  of 
all  their  private  property,  and  who  became  equals  on  entering 
the  society,  except  that  their  rules  were  enforced  by  an  Abbot 
elected  by  themselves,  and  all  important  matters  were  decided 
after  consultation  with  the  whole  body.  In  large  monasteries 
there  were  deans  selected  for  merit,  and  each  monastery  had 
its  steward,  charged  with  the  keeping  of  its  supplies.  All 
labor  was  performed  by  the  monks,  who  took  turns  in  the 
kitchen.  Hours  of  work,  of  study  and  of  prayer,  were  regu- 
lated, as  were  all  matters  of  dress  and  of  eating.  Confession 
of  faults  was  enjoined,  penances,  fasts  and  scourgings  were 
imposed  for  breaches  of  the  rules  of  the  order,  with  expulsion 
as  the  ultimate  penalty  for  persistent  misconduct.  Guests 
were  entertained  by  the  Abbot  in  separate  apartments,  and  the 
monks  were  not  allowed  to  speak  to  them,  except  with  special 
permission.  A  probation  amounting  to  about  a  year  in  all 
was  required  of  applicants  seeking  to  join  the  order.  All 
strife  and  contention  were  prohibited,  and  no  monk  could  go 
out  into  the  world  without  leave  of  his  Al)b()t.  The  system 
rccpiired  the  exercise  of  the  virtues  of  industry,  study,  self 
denial  and  the  recognition  of  ])rotherly  e(|uality.  These  lie 
at  the  foundation  of  all  social  ])rogress.  It  also  exacted  rigid 
observance  of  religious  forms,  tending  to  evil  or  good  ac- 
cording to  the  spirit  of  the  individual,  and  seclusion  from  the 
outside,  wicked  world,  which  contracted  the  field  of  vision 
and  influence  and  dried  up  the  natural  sympathies  of  the 
monks,   while  protecting  them    from   the  dreaded   contamina- 


368  EVOLUTION  OF  GOVERNMENTS  A^^D  LAWS 

tion  of  a  corrupt  society.  It  separated  the  sexes  and  defied 
the  imperative  law  of  reproduction.  In  this  it  prevented  that 
highest  and  purest  human  combination,  the  Christian  family, 
with  its  voluntary  devotion  to  succeeding  generations.  Con- 
vents were  also  established  for  females  with  similar  rules. 

The  rapid  rise  of  these  religious  societies  was  contempo- 
raneous with  the  decay  of  Roman  power  and  the  tide  of  Ger- 
manic invasion.  The  monastery  with  its  buildings,  its 
cultivated  lands,  its  work  shops  and  school,  became  a  promi- 
nent feature  of  all  Christendom,  not  only  on  the  continent  but 
in  the  British  Isles  as  well.  It  was  a  republic  of  peace,  indus- 
try, study  and  dexotion,  amid  external  surroundings  of  war, 
cruelty,  indolence  and  ignorance.  It  grew  in  wealth  and  im- 
portance by  reason  of  its  corporate  constitution  and  perpetual 
succession,  and  the  celibacy  of  its  inmates  yielded  no  heirs 
demanding  an  inheritance.  It  offered  a  refuge  to  those  who 
wished  to  shun  the  hardness  of  the  outer  world.  Other  codes 
for  the  government  of  monastic  societies  had  been  formulated 
before  that  of  Benedict,  notably  that  of  Basil,  which  became 
generally  followed  in  the  east,  and  numerous  modifications  of 
the  Benedictine  rules  were  made  in  after  times.  Many  so- 
cieties in  course  of  time  became  rich  and  licentious.  Abbots 
like  other  men  became  fond  of  jx^wer,  and  the  encroachments 
of  monastic  holdings  on  the  realms  of  the  rulers  excited 
jealousy  and  hostility. 

With  the  decline  of  the  empire  of  Charlemagne  and  the 
ci\il  wars  and  struggles  over  succession  to  local  authority 
arose  that  form  of  social  organization  and  land  tenure  known 
as  the  feudal  system.  With  the  Romans,  as  we  have  seen, 
land  was  treated  as  subject  to  ownership,  bargain  and  sale  in 
much  the  same  manner  as  chattels,  and  there  is  no  sharply 
drawn  line  in  the  law  between  landed  and  other  property. 
After  the  Germanic  tribes  gained  settled  habitations  and  rec- 
ognized title  to  tracts  adjacent  to  their  dwellings,  the  title 
of  the  possessor  was  a  full  and  perfect  one,  and  this  was 
termed  allodial  land.  Crown  lands,  conferred  on  favorites 
of  the  sovereign  by  the  kings  in  later  times,  were  termed 
benefices,  and  were  held  by  a  tenure  which  implied  at  first,  and 


MEDIAEVAL  EUROPE  369 

finally  expressed,  a  compact  on  the  part  of  the  beneficiary  to 
support  his  benefactor.  From  the  practice  of  conferring 
estates  by  kings  upon  their  followers  in  times  of  wars  and 
seizures  of  the  lands  of  enemies  arose  the  feudal  system,  which 
became  such  a  prominent  feature  of  the  dark  ages.  The 
fundamental  idea  of  it  was  a  close  union  between  lord  and 
vassal  for  war.  The  ceremonies  of  conferring  a  fief  consisted 
of,  I.  Homage.  The  vassal  with  head  uncovered,  belt  un- 
girt  and  without  sword  or  spurs,  kneeling,  placed  his  hands 
between  those  of  his  lord  and  promised  to  become  his  man, 
from  thenceforth  to  serve  him  with  life  and  limb  and  worldly 
honor,  faithfully  and  loyally,  in  consideration  oif  the  lands 
which  he  held  under  him.  Homage  could  be  accepted  only 
by  the  lord  in  person.  2.  An  oath  of  fealty  by  the  vassal  to 
his  lord.  3.  Investiture,  which  consisted  in  putting  the  tenant 
into  possession.  This  was  done  sometimes  on  the  land  by 
the  lord  or  his  deputy,  and  sometimes  by  the  symbolical  de- 
livery of  a  turf,  stone  or  other  symbol. 

The  first,  and  perhaps  most  important  obligation  assumed 
by  the  vassal,  was  that  of  military  service  under  his  lord.  The 
amount  of  service  which  might  be  demanded  in  a  year  de- 
pended on  the  size  of  the  fief  and  the  usage  of  the  time  and 
place.  Forty  days  w^as  the  usual  term  for  a  knights  fee ; 
during  which  he  must  attend  with  his  own  equipment  and  at 
his  own  expense.  Shorter  terms  were  required  for  smaller 
estates.  Old  men  and  w^omen  must  send  substitutes  on  pain 
of  'forfeiture  or  amercement.  The  terms  of  the  service  re- 
quired indicate  the  turbulent  and  disordered  state  of  society. 
The  wars  of  the  lord  were  mostly  with  near  neighbors,  and 
partook  more  of  the  character  of  forays  of  bandits  than  of 
organized  warfare.  In  some  places  the  obligation  of  the  vas- 
sal did  not  require  him  to  go  beyond  the  lord's  territory,  or 
more  than  a  day's  journey  from  it.  It  was  not  a  system  of 
public  defense,  but  an  organization  for  the  private  broils  of 
the  chief.  As  incident  to  feudal  tenures  the  lord  exacted:  i. 
Reliefs.  A  sum  of  money  required  to  be  paid  by  the  heir  of  a 
deceased  vassal  <m  investiture  with  the  estate.  The  amount 
was  not  regulated  by  any  fixed  law  and  was  often  fixed  arbi- 


370  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

trarily  by  the  lord.  2.  Fines  on  alienation  by  a  vassal  of  his 
estate.  This  arose  from  the  necessity  for  the  assent  of  the 
lord  to  an  alienation  by  the  vassal.  3.  Escheats  and  forfeitures 
through  failure  of  heirs  or  acts  or  omissions  which  worked 
a  forfeiture  of  the  tenant's  rights,  in  which  cases  the  estate 
reverted  to  the  lord,  and  this  was  aided  by  the  doctrine  df 
corruption  of  blood,  by  which  an  heir  was  prohibited  from 
tracing  descent  through  an  attainted  ancestor.  4.  Aids. 
These  were  imposed  by  the  lords  on  various  pretexts,  notably 
to  raise  marriage  portions  for  his  sons  and  daughters,  to  pay 
expenses  of  distant  expeditions,  to  ransom  him  from  cai> 
tivity,  and  generally  to  meet  extraordinary  demands  on  him. 
5.  Wardship.  During  the  minority  of  the  heir  the  lord  be- 
came his  guardian,  and  as  such  had  the  care  of  his  person 
and  charge  of  his  estate.  This  incident  seems  to  have  been 
confined  to  the  system  in  England,  Normandy  and  some  parts 
of  Germany,  but  in  France  the  custody  of  the  land  went  to 
the  next  heir,  and  of  the  person  to  the  nearest  kinsman  who 
could  not  inherit.  6.  Marriages.  In  England,  Normandy  and 
Germany  the  lord  assumed  the  right  to  choose  husbands  for 
female  wards,  and  in  later  times  to  dictate  the  marriages  of 
male  wards  also.  The  penalty  for  refusal  to  comply  with  the 
lord's  wish  was  forfeiture  of  the  value  of  the  marriage.  These 
incidents  of  vassalage  were  unknown  in  the  earliest  stages  of 
feudalism.  They  are  exhibitions  of  the  tendency  of  those 
holding  superior  power  to  unjustly  extend  it. 

The  obligation  of  the  lord  to  his  vassal  was  to  protect  him 
in  his  possession,  and  in  case  of  eviction  to  give  him  other 
lands  of  equal  value.  Where  large  estates  were  granted,  sub- 
infeudation followed  as  a  natural  sequence,  and  the  vassal  in 
turn  granted  portions  of  his  estate  to  sub-tenants,  who  did 
homage,  swore  fealty  and  gave  military  service.  Thus  in 
time  there  was  developed  a  chain  of  tenancies  'from  the  king  as 
lord  paramount  down  to  the  tenants  of  the  smallest  holdings. 
The  feudal  svstem  was  not  originally  established  anywhere  by 
legal  enactment  of  the  law-making  power  of  a  great  state,  but 
was  the  outgrowth  of  customs  and  conditions  and  the  spirit 
of  the  times.     It  therefore  was  not  uniform,  but  varied  in  its 


MEDIAEVAL  EUROPE  371 

incidents  and  obligations  according  to  local  customs.  The  all 
pervading  essence  of  it  was  that  the  vassal  should  support  his 
lord,  right  or  wrong,  in  all  his  contests,  and  the  lord  should 
protect  the  vassal  in  his  holding.  The  system  grew  up  in  the 
ninth  and  tenth  centuries,  and  by  the  end  of  the  eleventh  had 
l^ecome  general  over  western  Europe,  and  in  1088  a  written 
collection  of  feudal  customs  was  made  by  Beam. 

While  the  system  seems  to  have  had  its  inception  in  grants 
of  crown  lands  to  followers  af  the  king,  the  turljulence  of  the 
times  made  it  desirable  for  the  holders  of  allodial  or  frank 
tenure  lands  to  gain  the  protection  of  the  neighboring  lord. 
It  therefore  became  common  for  the  holders  of  such  estates 
to  surrender  them  to  the  king  or  neighboring  great  lord  and 
take  them  back  as  feudal  tenures.  Not  only  did  laymen  gen- 
erally adopt  this  course,  but  monastic  and  church  lands  were 
similarly  placed  under  the  military  protection  of  a  powerful 
neighbor.  The  titles  and  ranks  of  European  nobility  de- 
veloped from  this  system.  In  place  of  the  ancient  appointees 
f'f  the  Emperors,  who  were  assigned  to  duties  in  a  particular 
district  as  political  rei)resentati\'es  of  imi)erial  power,  there 
was  established  a  fixed  connection  between  the  land  and  the 
local  lord,  which  the  king  could  not  sever.  Under  the  Roman, 
Gothic  and  Frankish  emperors,  to  the  time  of  Charlemagne, 
there  was  no  necessary  connection  of  political  power  with 
title  to  land.  Under  the  feudal  system  title  to  land  was  the 
basis  of  all  political  power.  Erom  villein  to  king  the  station, 
rank  and  power  of  each  was  determined  by  the  relation  he 
sustained  to  land.  Slavery  disappeared,  and  serfdom  and 
villeinage  took  its  place.  Men  were  no  longer  bought  and 
sold,  but  the  villein  was  completely  at  the  mercv  of  the  owner 
of  the  soil  to  which  he  was  attached.  Erom  the  permanence 
of  the  relation  of  the  lord  to  the  soil  arose  a  barrier  against 
the  arbitrary  power  of  tlie  king.  The  great  vassal  could  not 
l>e  displaced  or  denied  his  local  authority  and  importance.  Re- 
hind  him  stood  the  strength  in  arms  of  his  retainers.  The 
spirit  of  the  times,  concurring  with  the  genius  of  ifeudalism, 
gave  to  the  great  landholders  an  importance  and  permanence 
of  power,  which   rij)ened   into  that  proud   titled   aristocracy, 


Zl^  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

that  still  exhibits  such  pretensions  of  superiority.  After  the 
noble  orders  had  become  fairly  established  by  transmission  of 
estates  and  power  from  one  generation  to  another,  and  an 
idea  of  distinctions  of  blood  and  family  had  taken  firm  root, 
kings  assumed  the  power  of  conferring  rank  on  their  favo- 
rites, independent  of  territorial  possessions.  Churchmen  did 
not  escape  the  all  pervading  distinctions,  which  rated  the  idle 
nobility  so  ifar  above  the  toiling  or  trading  community.  Pre- 
lates and  Abbots  ranked  as  feudal  nobles,  and  swore  fealty  for 
their  lands,  over  which  they  exercised  the  same  power  and 
jurisdiction  as  the  lay  nobles.  While  the  lands  of  churches 
and  monasteries  were  not  generally  military  tenures,  it  was 
not  uncommon  for  them  to  furnish  their  quotas  to  take  part 
in  the  sovereign's  wars. 

Among  the  early  Germanic  tribes  all  public  questions  were 
determined  in  a  general  assembly  of  freemen.  The  custom 
of  holding  general  assemblies  was  continued  by  the  Lombards 
in  Italy  and  by  the  Franks  as  late  as  882.  The  capitularies 
of  Charlemagne  purport  to  have  been  ordained  by  the  king 
with  general  consent.  Thus  the  law-making  power  was  re- 
garded as  still  residing  in  the  body  of  freemen  through  the 
Merovingian  and  until  the  decadence  of  the  Carlovingian 
dynasty.  With  the  establishment  of  the  feudal  system  legis- 
lation ceased  in  France,  and  'for  three  centuries  no  general 
laws  were  established.  The  king  conferred  as  much  as  he 
pleased  with  his  courtiers  and  took  such  advice  as  suited  him. 
The  great  nobles  in  like  manner  were  surrounded  by  their 
retainers.  To  so  low  a  state  was  the  central  authority  reduced 
that  Louis  IX  in  his  Establishments  says  that  the  king  cannot 
declare  any  new  law  in  the  territory  of  a  baron  without  his 
consent,  nor  can  the  baron  do  so  in  that  of  his  vassal.  The 
nearest  approach  to  the  exercise  of  legislative  authority  was 
the  resolutions  and  agreements  of  congresses  of  neighboring 
lords,  who  undertook  to  carry  out  an  agreed  policy  in  their 
respective  dominions.  Ecclesiastical  councils,  of  representa- 
tives of  the  churches  and  religious  orders,  partook  more  of 
the  character  of  legislative  bodies,  and  were  more  representa- 
tive   in   composition    than    any    congress    of    nobles.      Their 


MEDIAEVAL  EUROPE  373 

ordinances  were  of  course  wanting  in  the  sanction  of  civil 
legislative  power,  but  the  church  had  its  own  system  of  en- 
forcing obedience  to  its  behests  by  working  on  the  credulity 
and  superstition  oif  an  ignorant  laity.  During  the  times  of 
which  we  are  now  speaking  there  was  no  general  system  of 
taxation.  The  king  and  nobility  depended  on  their  estates  and 
perquisities  of  feudal  tenures  to  maintain  their  establishments. 
As  the  vassal  furnished  his  own  equipment  and  paid  his  ow^n 
expenses  in  the  wars,  there  was  no  expense  connected  with  the 
military  establishment. 

The  feudal  system  was  not  adapted  to  urban  conditions, 
commerce  or  industrial  pursuits.  The  feudal  lord  was  a  rob- 
ber and  a  tyrant,  who  fortified  his  castle  and  encased  himself 
in  armor,  that  he  might  maintain  his  advantage  over  the 
weak  and  defenseless.  In  the  cities,  especially  of  Italy,  the 
spirit  of  republicanism  still  survived,  though  often  supplanted 
by  despotic  rule  of  one  kind  or  another.  Venice  from  its  sea- 
protected  islands  struggled  into  existence  first  with  twelve 
Iribunes,  elected  annually,  to  guide  the  affairs  of  state.  In 
697  they  elected  a  chief  magistrate,  called  the  Doge,  who  was 
general  and  judge  with  powers  not  definitely  limited,  but  who 
acted  in  important  matters  with  the  concurrence  of  a  general 
assembly.  He  was  sometimes  permitted  to  associate  his  son 
with  him.  In  1032  limitations  were  placed  on  his  power. 
He  was  prohibited  from  associating  his  son  in  the  government, 
and  required  to  act  with  the  consent  of  two  counselors,  and 
to  counsel  with  the  principal  citizens  on  important  occasions. 
In  1 1 72  a  radical  change  was  effected,  and  a  great  council  of 
480  citizens  was  established.  This  council  appointed  the  doge 
rmd  other  im[X)rtant  officers.  At  first  the  members  of  this 
1)ody  were  selected  by  tribunes  chosen  by  the  people,  but  in 
course  of  time  they  assumed  the  power  of  confirming  or  re- 
jecting their  own  successors,  and  ultimately  membership  be- 
came hereditary.  In  1 179  the  exercise  of  criminal  jurisdiction 
was  given  to  a  council  of  forty  members,  chosen  annually. 
The  general  care  of  the  state  was  given  in  charge  to  sixty 
councilors,  over  whom  the  doge  presided.  In  the  fourteenth 
centurv  this  council  was  doubled  in  numbers.     The  senate  was 


374  EVOLUTION'  OF  GOVI- KXMEXTS   AND   LAWS 

annually  renewed  b}'  the  great  council.  I'Vom  this  body  six 
members  were  selected,  who,  acting-  with  the  doge  as  an  execu- 
tive board,  treated  with  foreign  states,  convoked  councils  and 
performed  administrative  duties.  On  his  election  the  doge  was 
required  to  take  an  oath  to  observe  many  restrictions  on  his 
power.  The  method  oif  electing  a  doge  was  an  exceedingly 
complicated  combination  of  choice  by  lot  and  by  ballot  through 
the  medium  of  successive  sets  of  electors.  In  1296  the  great 
council  was  closed,  and  thereafter  all  but  the  families  then 
members  of  it  were  excluded.  In  13 10  the  famous  council  of 
ten  was  created,  who,  in  concert  with  the  doge  and  his  six 
counselors,  became  the  controlling  force  in  the  state.  Under 
this  system  the  government  was  vigorously,  but  tyrannicallv, 
conducted.  The  power,  wealth,  commerce  and  influence  of 
Venice  during  the  darkest  period  of  European  history  bear 
witness  to  the  superior  vitality  of  an  organization  which  car- 
ries to  its  head  a  constant  impulse  from  the  whole  people,  or 
a  large  and  representative  portion  of  them.  No  other  Euro- 
pean state  endured  so  long,  or  so  completely  preserved  its 
integrity  during  those  years  of  darkness.  The  umfailing  ten- 
dency, however,  for  those  on  whom  power  is  conferred  to 
extend  it,  is  well  illustrated  by  its  history,  as  also  is  the  decay 
which  always  attends  a  rigid  stratification  of  society  and  the 
rule  of  an  hereditary  aristocracy,  which  li\cs  without  work 
and  despises  and  despoils  an  ignorant  and  o])presse(l  prole- 
tariat. The  vices  of  the  Venetian  nol^ility  were  the  vices 
which  tyrants  exhibit  everywhere. 

At  Rome  the  idea  that  the  people  were  the  source  of  all 
political  power  never  became  wholly  extinct.  The  spirit  of  the 
church,  if  not  of  the  Popes,  was  distinctly  repul)lican.  The 
earlv  bishops  and  their  successors,  the  Popes,  were  elected, 
and  the  idea  of  hereditary  power  never  obtained  in  the  church. 
The  celibacy  of  the  clergy  effectually  prevented  it.  True 
there  were  times  of  gross  corruption  in  the  elections,  times 
when  the  papal  chair  was  filled  by  fraud,  by  bribery  and  by 
violence.  These  evils  are  not  strangers  to  any  form  of  gov- 
ernment or  svstem  of  social  or  religious  organizati(^n.  They 
are  manifestations  of  human  weakness  and  vice.     Abov^e  the 


MEDIAEVAL  EUROPE  375 

church  at  all  times  shone  the  pure  light  of  the  teachings  of 
Christ,  enjoining .  universal  brotherhood  and  love  and  de- 
nouncing every  form  of  oppression  and  wrong  doing.  No 
system  of  tyranny  could  justify  itself  by  any  recorded  word 
of  His.  He  never  attempted  to  order  or  advise  any  form  or 
system  of  human  government.  "Be  not  ye  called  Rabbi,  for 
one  is  your  master,  even  Christ,  and  all  ye  are  brethren.  And 
call  no  man  your  father  upon  the  earth,  for  one  is  your  Father 
which  is  in  heaven.  Neither  be  ye  called  masters,  for  one  is 
your  master,  even  Christ.  But  he  that  is  greatest  among  you 
shall  be  your  servant,  and  whosoever  shall  exalt  himself  shall 
be  abased,  and  he  that  shall  humble  himself  shall  be  exalted." 
Absolute  equality  and  unselfishness  among  mortals  is  the 
spirit  of  all  his  teachings.  The  lofty  ideal  of  voluntary 
obedience  to  the  moral  law  as  the  ordi^iance  of  God,  the  sole 
ruler  of  all,  was  not  sullied  by  any  attempt  at  creating  a  gov- 
ernment to  be  administered  by  men  and  subject  to  all  human 
imperfections.  Nor  did  he  attempt  to  formulate  rules  of 
conduct  to  cover  each  specific  case,  and  much  less  to  prescribe 
rules  for  the  government  of  property  rights.  With  the  single 
exception  of  his  teachings  with  reference  to  .family  relations 
and  the  sanctity  and  indissolubility  of  the  matrimonial  bond. 
he  declared  no  rules  of  civil  conduct  which  would  be  ordi- 
narily denominated  laws.  His  teachings  were  of  the  moral 
principles  by  which  every  human  law,  regulation  and  act, 
must  be  tested.  Rewards  and  punishments  in  a  future  state 
of  being  were  promised  as  the  leading  incentives  to  righteous- 
ness in  this  life. 

The  ancient  spirit  of  Roman  republicanism  also  lingered  in 
the  great  city,  and  throughout  the  darkest  of  the  succeeding 
centuries  there  were  shadows  of  consuls,  senates,  trilmnes  and 
other  ancient  officials  of  the  republic.  These  temporary  and 
relatively  insignificant  revivals  of  the  ancient  system  furnish 
little  or  nothing  novel  or  worthy  of  extended  notice  here.  In 
the  tenth  and  eleventh  centuries  the  cities  af  Lombardy,  Milan, 
Pisa,  Pavia,  Genoa,  Florence  and  other  Italian  cities,  regu- 
lated their  affairs  by  municipal  officers,  chosen  bv  themselves 
To  trace  the   history   of   each   is   impracticable   and   i)erhaps 


3/6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

would  be  unprofitable,  except  as  they  exhibit  the  superior 
vigor  and  prosperity  of  communities  which  enlist  in  public 
affairs  the  combined  energies  of  many,  over  the  petty  despot- 
isms of  the  feudal  lords.  These  cities  were  subject  to  more 
or  less  domination  by  the  emperors,  kings  and  dukes,  who 
from  time  to  time  asserted  and  maintained  authority  over 
them  with  more  or  less  strictness.  The  superior  advantages 
enjoyed  by  the  people  of  these  cities  stand  out  in  strong  con- 
trast to  the  misery  and  poverty  of  the  villeins  under  the  feudal 
barons.  Thus  Milan  in  the  middle  of  the  twelfth  century 
was  far  more  populous  than  any  of  the  capitals  of  the  great 
kingdoms.  It  was  defended  by  strong  walls  and  deep  trenches, 
within  which  an  industrious  population  dwelt  in  security,  each 
enjoying  the  ifruits  of  his  own  industry  and  foresight.  These 
little  republics  were  flot  exempt  from  such  jealousies  and 
rivalries  as  prevailed  among  the  ancient  cities  of  Greece,  and 
destructive  wars  were  waged  from  time  to  time.  Against  the 
tyranny  of  Frederick  Barbarossa  the  Lombard  cities  united 
after  the  destruction  of  Milan,  and  gained  victory  and  inde- 
pendence, but  their  own  jealousies  and  animosities  in  turn 
destroyed  the  league,  which  had  protected  them  against  an 
external  foe.  A  peculiar  and  most  unfortunate  state  of  affairs 
developed  about  the  year  1200  from  the  division  of  the  dif- 
ferent cities,  and  of  the  citizens  of  each  city,  between  the 
factions  of  the  Guelphs  and  Ghebelins.  As  no  well  defined 
matter  of  principle  or  even  of  policy  or  interest  divided  these 
factions,  but  merely  claims  of  rival  princely  houses,  malice 
and  prejudice  held  full  sway,  and  no  ground  for  hostility  ex- 
isted which  reason  or  mutual  concessions  could  remove,  city 
was  arrayed  against  city  in  malignant  strife,  and  in  each  city 
faction  warred  with  faction  the  more  bitterly  because  without 
justifiable  object  or  excuse.  Notwithstanding  the  rivalries  and 
wars  of  these  petty  republics,  their  wealth  and  prosperity, 
their  public  works  and  private  establishments,  present  in  strong 
contrast  the  dift'erence  between  a  free  republican  city  and  rural 
despotism.  The  city  governments  were  generally  modeled 
largely  after  that  of  ancient  Rome. 

While  Frederick  I  maintained  his  rule  over  the  Lombard 


MEDIAEVAL  EUROPE  377 

cities,  he  placed  over  each  a  chief  officer,  called  a  podcsta,  in 
place  of  the  elective  consuls.  A'fter  his  expulsion  the  cities 
quite  generally  adopted  the  plan  of  electing  a  podesta  from 
among  the  citizens  of  a  neighboring  city,  whose  functions, 
though  varying  in  different  cities  and  at  different  times,  were 
mainly  judicial.  He  was  forbidden  to  marry  in  the  city  or 
have  intimate  relations  with  any  of  the  citizens.  The  purpose 
of  this  was  to  have  a  judge  who  w'as  free  from  bias  or  fac- 
tional prejudice. 

The  feudal  system  was  not  adapted  to  urban  life  or  com- 
mercial pursuits,  and  the  organization  of  society  in  the  towns 
never  conformed  to  it.  Not  only  in  Italy,  but  in  France  and 
Germany,  there  was  at  all  times  a  spirit  of  independence  and 
an  assertion  of  the  right  to  local  government  in  opposition  to 
the  tyranny  of  feudalism.  Along  the  Rhine,  as  well  as  in 
other  parts  of  both  countries,  the  feudal  barons  in  their  forti- 
fied strongholds  became  robber  chiefs.  The  people  gathered 
in  the  towns  formed  trades  guilds,  chose  councils,  and  by  of- 
fering an  asylum  to  all  who  chose  to  jom  them,  grew  in 
numbers  and  in  power. 

On  the  deposition  of  Charles  the  Fat  in  888  the  Frankish 
empire  was  divided,  and  the  separate  existence  of  the  German 
empire  under  Arnulf  commenced.  In  accordance  with  an- 
cient customs  election  was  the  only  title  to  chief  power.  Just 
how  or  by  what  classes  of  people  the  choice  was  made  is  not 
made  very  clear,  but  it  seems  to  have  been  in  a  general  as- 
sembly of  the  five  nations  of  Germany.  The  German  em- 
perors assumed  to  be  the  successors  of  the  Roman  emperors, 
and  they  claimed  authority  over  the  Floly  Roman  Empire, 
which  bore  a  shadowy  existence  through  this  long  period  of 
strife  and  disorder,  with  little  or  no  real  power  beyond  the 
immediate  domain  of  the  holder  of  the  imperial  title.  The 
actual  choice  of  succeeding  emperors  appears  to  have  been 
made  by  the  nobility,  ratified  perhaps  to  some  extent  by  general 
assemblies  of  the  people,  but  with  the  growth  of  the  feudal 
system  the  actual  power  of  the  emj^eror  Ijecame  so  slight  that 
it  was  scarcely  sought  after.  At  the  election  of  Lothaire  in 
1 124  there  was  what  is  termed  a  pretaxation,  or  selection  of  a 


3/8  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

candidate  by  ten  i)ersons,  in  wiioso  choice  the  princes  agreed 
to  acquiesce.  Later  the  electoral  college  was  composed  of 
seven  members,  the  archl)ishops  of  Mentz,  Treves  and  Co- 
logne, the  duke  of  Saxony,  the  count  Palatine  of  the  Rhine, 
the  king  of  Bohemia,  and  the  margrave  of  Brandenburg.  The 
powers  of  the  emperor  are  not  easily  state<l,  nor  were  they 
ever  clearly  defined,  but  rather  de])endent  on  the  character  of 
the  ])erson  filling  the  office  and  the  temper  of  the  people  at 
the  time.  His  claim  of  so\ereignty  over  Italv  was  given 
more  or  less  recognition,  but  never  amounted  to  an  effectual 
direction  of  affairs.  The  spirit  of  the  feudal  lords  was  such 
throughout  Germany,  as  well  as  all  parts  of  Europe  where 
feudalism  prevailed,  as  to  deny  the  right  of  any  superior  to 
interfere  with  local  affairs  in  their  dominions.  The  feudal 
baron  w^as  the  political  entity.  He  waged  war  when,  with 
whom,  and  as  he  pleased.  That  now  clearly  recognized  dis- 
tinctive function  of  sovereignty,  the  right  to  form  alliances 
and  make  war  or  peace,  was  then  freely  exercised  by  each 
feudal  landlord.  The  Emperor  of  Germany,  the  French  king 
and  other  potentates,  w'ere  ix)werless  to  prevent  the  private 
wars  among  their  vassals,  nor  were  they  able  to  command 
their  support  in  contests  with  outside  ifoes.  For  three  cen- 
turies after  the  breaking  up  of  the  Empire  of  Charlemagne 
the  history  of  Europe  is  not  to  be  traced  as  that  of  organized 
states  with  settled  governments  and  laws.  The  first  and  far 
most  prominent  political  fact  was  the  growing  power  of  the 
feudal  lords.  That  power  "was  exercised  singly  by  each  in 
accordance  with  his  own  sense  of  honor.  Pride,  arrogance, 
disregard  of  human  life,  detestation  of  labor,  of  learning  and 
o/f  all  useful  callings,  w^ere  the  prevailing  sentiments  of  the 
nobility.  It  is  indeed  difficult  to  detect  anything  good  in  the 
system.  It  was  as  if  the  free  Germanic  tribes  had  been  con- 
verted into  petty  despotisms,  in  which  the  freemen  had  be- 
come serfs  and  the  chief  a  tyrant.  The  cities  and  towns  of 
Germany  and  France  were  of  little  political  importance  in 
those  times,  as  compared  with  the  great  landlords  and  their 
vassals,  and  most  of  them  found  it  necessary  to  place  them- 
selves under  the  protection,  wdiich  often  meant  at  the  mercy, 


MEDIAEVAL  EUROPE  379 

of  a  neii^hburiny;-  chief.  In  Italy  alone  the  feudal  Ijarons  were 
placed  under  some  restraints,  and  in  many  instances  required 
to  dwell  within  the  town  and  submit  to  its  regulations.  The 
church  and  the  monastic  establishments  preserved  whatever 
remained  of  learning,  and  alone  afforded  a  bond  of  union 
throughout  the  warring  fragments  of  the  ancient  empire. 
\\'ithin  the  monastery  labor,  study,  equality  and  self-denial 
were  still  the  precepts,  if  not  generally  the  practice.  The 
barbarity  of  the  age,  however,  had  its  influence  on  these  insti- 
tutions. Superstitions  derived  from  ancient  and  impure  wor- 
ships were  imported  and  made  part  of  the  stock  in  trade  of 
the  clergy.  The  pure  morality  of  Christ  was  too  lofty  for 
practical  use  in  an  age  so  degraded,  and  saints  and  images, 
sticks  of  wood  labeled  pieces  of  the  true  cross,  bones  of  saints 
and  martyrs,  and  other  objects  to  which  pious  fraud  could 
give  fictitious  virtue,  were  made  objects  of  worship  and  held 
forth  as  possessing  miraculous  powers.  The  vice  of  avarice 
also  seized  fast  hold  of  the  church  of  him  who  so  vigorously 
denounced  it,  and  absolution  for  the  vilest  crimes  was  granted 
by  the  church  to  pious  criminals  who  would  pay  sufficiently 
for  it.  Superstition  always  has  a  firm  hold  on  him  who  feels 
that  his  conduct  is  vicious,  and  the  abbots  and  clergy  of  that 
age  found  no  difficulty  in  profiting  largely  from  the  super- 
stitious fears  of  the  multitude.  Not  only  were  the  holdings 
of  religious  estal)lishments  so  increased  as  to  cover  a  large 
part  of  the  entire  country,  but  the  power  and  influence  of  the 
church  became  jiredoniinant.  This  would  have  been  of  in- 
calculable benefit  if  pure  Christian  morality  could  have  been 
promoted,  l)ut  with  increase  of  wealth  came  corruption  of  the 
church,  and  in  many  places  monasteries  and  clergymen's 
houses  became  seats  of  vice  and  immorality. 

Theoretically  the  monastery  was  a  refuge  for  the  man  of 
peace,  who  would  withdraw  from  the  conflicts  of  a  bloody 
rge,  but  the  spirit  of  war  could  not  be  whollv  excluded,  and 
abbots  often  found  it  necessary,  or  deemed  it  expedient,  to 
arm  their  followers  and  take  part  in  the  local  wars.  Nor  were 
the  church  properties  always  respected  by  the  l)arf)ns.  Pre- 
texts were  invented  l)y  the  powerful  to  seize  the  lands  held 


38o  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

to  pious  uses  by  force,  and  there  was  no  superior  authority 
with  sufficient  strength  to  insure  rech'ess.  Corrupt  as  the 
rehgious  institutions  undoubtedly  were,  thev  still  rendered 
succeeding  ages  an  inestimable  service.  Of  all  the  treasures 
which  one  age.  can  pass  down  to  another,  that  of  knowledge 
and  wisdom,  gained  from  experience  and  the  inspirations  of 
religious  teachers,  poets  and  philosophers,  is  of  the  most 
inestimable  value.  To  the  church  and  the  monasteries  we  owe, 
not  merely  the  preservation  and  transmission  to  our  times  of 
the  sacred  writings,  but  also,  tlie  perishable  manuscripts  in 
which  were  written  the  learning  of  the  heathen  world,  which 
the  art  of  printing  has  now  made  accessible  to  the  educated 
people  of  all  nations.  Through  them,  perhaps  more  than  any 
other  medium,  the  light  of  the  Roman  jurisprudence  has  been 
rekindled  to  become  again  the  basis  of  judicial  action  through- 
out Europe. 

The  political  importance  otf  the  barons  in  France,  where  the 
feudal  system  attained  its  most  complete  development,  is  ex- 
hibited by  the  following  functions  and  exemptions  which 
they  asserted,  i.  Power  to  coin  money.  2.  To  wage  private 
war.  3.  Exemption  from  all  taxation  and  tribute  except  the 
feudal  aids.  4.  Freedom  from  legislative  control.  5.  The 
exclusive  exercise  of  judicial  functions  in  their  dominions. 
A  system  recognizing  these  claims  necessarily  left  the  central 
authority  a  mere  shadow.  The  only  semblance  of  general 
legislative  authority  seems  to  have  been  that  exercised  by 
general  councils  of  the  church.  With  all  its  tyranny  the 
feudal  system  contained  some  germs  of  social  order  and  civil 
liberty.  It  recognized  a  definite  obligation  resting  on  the  lord 
to  protect  the  vassal,  and  was  based  on  the  idea,  if  not  the 
substance,  of  mutual  support  and  advantage.  The  terms  cuf 
the  relation  were  fixed  by  general  understanding,  if  not  always 
faithfully  observed.  Within  his  demesne  justice  was  ad- 
ministered publicly  by  the  lord  in  accordance  with  the  customs 
of  the  times,  and  all  mere  arbitrary  power  was  theoretically 
denied,  though  actually  exercised.  The  system  flourished  for 
about  three  centuries  and  begun  to  wane.  The  forces  which 
undermined  it  proceeded  from  two  directions,  the  sovereigns 


MEDIAEVAL  EUROPE  381 

and  the  towns.  The  king-  could  not  maintain  his  wars  suc- 
cessfully with  the  mere  temporary  support  of  his  vassals. 
Longer  terms  of  service  and  money  for  supplies  were  indis- 
pensable to  the  reduction  of  a  fortified  town.  Long  service 
could  only  be  gained  with  pay.  Pay  could  only  be  afforded 
by  a  general  system  of  contribution  or  taxation.  National 
spirit,  stimulated  by  the  crusades,  and  distant  wars,  inclined 
public  sentiment  toward  strengthening  the  hands  of  the 
kings. 

At  the  other  end  we  find  the  towns,  seats  of  industry,  im- 
bued with  a  more  democratic  spirit  and  inclined  to  resist  the 
tyranny  of  the  barons.  Productive  industry  and  peaceful  in- 
clinations tended  to  a  greater  increase  of  numbers  than  that 
among  the  retainers  of  those  whose  only  calling  was  war. 
Not  only  did  the  numbers  of  the  townsmen  increase  more 
rapidly  through  natural  multiplication,  but  they  steadily  gained 
at  the  expense  of  the  nobles  through  the  settlement  of  villeins 
and  small  feudatories  in  the  towns,  where  they  were  gener- 
ally welcomed  and  accorded  burghers'  privileges.  The  feudal 
system,  operating  throughout  the  same  great  field  as  the  mon- 
astic and  church  system,  reduced  the  power  of  the  kings  to 
a  mere  shadow  of  the  absolutism  of  the  ancient  emperors. 
The  popes  persistently  advanced  their  claims  of  spiritual  super- 
vision, and  in  the  exercise  of  religious  discipline  exerted  in 
fact  a  powerful  influence,  and  often  an  arl^itrary  supervision, 
over  secular  affairs.  The  papal  power  was  rapidly  extended  by 
encouraging  appeals  to  Rome  in  all  disputes  arising  in  the 
church,  and  then  of  controversies  between  contending  princes. 
Thus  Lothair  was  taken  to  task  for  divorcing  his  wife  and 
excommunicated  l)y  Po])e  Nicholas  L  Excommunication  in 
some  states  of  society  might  amount  to  little  more  than  an 
expression  of  disi)leasure,  but  in  an  age  of  superstition  and 
of  general  submission  to  the  church  it  was  a  heavy  penalty 
depriving-  the  offender  of  all  participation  in  the  ministrations 
of  the  church  and  of  all  communion  with  its  members.  It 
in  effect  singled  him  out  as  an  object  of  scorn  and  detestation 
to  l)e  shunned  and  conrlemned  by  all  mankind.  The  proud 
Lothair  at  first  treated  tlie  action  of  the  Pope  with  contempt, 


382  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

but  was  forced  to  humbly  sue  at  the  feet  of  Adrian  II  for 
pardon  and  absohition.  The  law  also  added  to  the  force  of 
the  papal  authority  a  disqualification  of  the  excommunicated 
person  to  testify  as  a  witness  in  a  court  of  justice,  or  even  to 
bring  an  action.  A  yet  more  severe  weapon  wielded  by  the 
head  of  the  church  was  the  interdict,  by  which  not  only  the 
offender,  but  all  his  subjects,  were  deprived  of  religious  privi- 
leges. The  churches  throughout  his  dominions  were  closed, 
the  bells  silenced  and  the  dead  left  unburied.  No  rites  but 
those  of  baptism  and  extreme  unction  could  be  performed. 
The  penalty  fell  on  the  unoffending  subjects  with  the  same 
severity  as  on  the  guilty  ruler.  Though  the  power  o)f  the 
church  was  sometimes  successfully  resisted,  and  though  kings 
sometimes  in  turn  ruled  the  weaker  popes  and  used  them  as 
instruments  for  their  own  aggrandisement,  in  an  age  when 
all  learning  was  the  property  of  the  church  and  superstitious 
veneration  of  pope  and  clergy^  was  so  general,  the  interdict 
was  an  effectual  weapon  for  the  execution  of  papal  commands. 
From  the  anarchistic  conditions  which  prevailed  when 
feudalism  was  at  its  height  modern  European  society  has 
been  evolved.  The  political  map  of  that  continent  has  been 
subject  to  many  and  sweeping  changes,  and  still  shows  many 
small  states,  constantly  armed  and  expectant  of  war.  No 
firm  bond  yet  binds  the  people  of  different  nations  to  each 
other.  Narrowness,  distrust  and  inherited  hatreds,  still  bar 
the  way  to  sensible  combination  and  the  acceptance  by  rival 
states  of  mutual  good-will  and  good  deeds.  Yet  from  the 
disorganized  and  chaotic  mass  of  the  dark  ages  states  with 
larger  territory,  more  varied  popular  elements,  and  better 
principles  have  grown  up.  These  we  must  examine  separately 
and  in  detail. 

Authorities 

Henry  Hallam :    History  of  Europe  during  the  Middle  Ages. 

H.  M.  Gwatkin :    The  Cambridge  Mediaeval  History. 

Michaud's  History  of  the  Crusades. 

Oman :     The  Dark  Ages. 

Continental  Legal  History  Series,  vol.  I. 


CHAPTER  XVI 

Russia 

Our  earliest  introduction  to  the  inhabitants  o;f  that  vast 
territory  now  designated  as  Russia  comes  through  the  Greeks, 
and  exhibits  many  tribes  with  varied  characteristics.  The 
name  Scythians  was  applied  quite  generally  to  the  nomads  of 
the  great  plains,  and  also  to  those  who  tilled  the  soil  in  the 
rich  valley  of  the  Dnieper.  Many  early  tribes  are  mentioned 
by  Herodotus  and  other  ancient  writers,  the  relationship  of 
which  to  each  other  or  to  modern  people  it  is  not  our  pur- 
pose to  trace.  From  the  earliest  times  central  and  north- 
western Asia  has  been  a  breeding  ground,  from  which  has 
issued  barbaric  hordes  that  have  pushed  their  way  in  all  di- 
rections and  especially  across  the  flat  grassy  Russian  plains 
into  Europe.  Their  movements  have  been  in  main  migrations 
of  tribes  with  all  their  families,  cattle  and  belongings,  seeking 
to  escape  enemies  or  searching  for  pasturage  or  pillage. 
Among  the  characteristics  of  most  of  these  people,  when  first 
mentioned  in  history,  are  bravery,  cruelty,  superstition  and 
ignorance.  They  scalped  prisoners,  drank  the  blood  of  ene- 
mies killed  in  battle,  sacrificed  slaves  and  horses  at  the  funer- 
als of  dead  kings,  and  had  other  horrible  customs,  yet  it 
would  hardly  be  safe  to  give  this  as  a  general  statement  of  the 
manners  which  prevailed  for  any  long  period  df  time.  It  can 
be  said  however  that  cruelty  and  indiscriminate  slaughter  of 
conquered  enemies  has  generally  attended  the  conquests  made 
by  the  swarms  which  from  time  to  time  have  issued  from  this 
breeding  ground.  The  peculiarities  of  southern  Russia  have 
rendered  it  possible  for  Asiatic  hordes  to  pass  quickly  with 
horses,  cattle  and  all  their  households  from  their  Asiatic  seats 
into  the  heart  of  Europe.  Level  ])lains  with  ample  f)astiu'age, 
unobstructed  by  mountains  or  great  forests,  have  afTordod  a 
broarl  highway,  oi)cn  to  all   who  might  choose  to  travel   it. 

3S3 


384  EVOLUTIOX  OF  GOVERNMENTS  AND  LAWS 

Pastoral  tribes,  moving-  with  herds  and  tents,  might  be  eciually 
at  home  anywhere  from  the  mountain  sloi>es  of  central  x^sia 
to  the  Dnieper.  The  prevalence  of  periodical  droughts  and 
resulting  failure  of  vegetation  have  compelled  frequent  mi- 
grations, and  the  necessities  oif  their  situations  have  driven 
tribe  after  tribe  along  this  highway.  It  was  the  people  dwell- 
ing in,  or  who  passed  through  this  grass  land,  that  came  in 
contact  with  Greeks  and  Romans  and  successively  invaded 
western  Europe.  The  dwellers  in  the  Avooded  country  lying  to 
the  north  never  came  in  contact  with  either  ancient  Greeks 
or  Romans. 

The  foundations  of  the  government  which  has  since  ex- 
tended from  the  Baltic  to  the  Pacific  and  from  the  Arctic  be- 
yond the  Black  Sea,  w^ere  laid  in  the  forest  regions  from  which 
the  great  rivers  flowing  into  the  Baltic,  Black  and  Caspian 
seas  have  their  sources.  The  dominant  race  of  Russia  is 
the  Slav^  classed  as  Aryans  and  allied  to  the  Germans.  The 
next  most  important  elements  are  Finns  and  Tartars.  Inter- 
mixture has  produced  a  com]iX)site  of  which  the  prevailing 
characteristics  are  Slavic. 

The  Slavs  as  first  made  know^n  to  us  were  at  a  very  low 
stage  of  social  development.  The  family  was  the  political  and 
social  unit  with  the  father  as  its  patriarchal  head.  Polygamy 
was  allowed,  and  waives  were  captured,  with  or  without  their 
consent,  as  a  part  of  the  marriage  ceremony.  The  mir  was 
an  expansion  of  the  family  and  under  the  direction  oif  a 
council  of  elders  called  rcfcJic.  In  its  deliberations  there  was 
little  of  order,  and  a  decision  required  the  concurrence  of  all. 
The  idea  of  the  right  of  a  majority  to  rule  did  not  obtain,  but 
the  majority  were  forced  to  make  such  concessions  to  the 
minority  as  would  induce  them  to  concur,  or  to  use  some  other 
effectual  means  of  enforcing  acquiescence.  The  village  lands 
were  owned  in  common,  except  the  d-t'or  or  inclosure  im- 
mediately about  the  house.  A  group  of  inirs  was  called  a 
z'olosf  or  paf^ost  and  was  governed  by  a  council  of  elders  of 
the  Diirs.  A  chief  of  the  volost  chosen  by  the  elders  was  a 
leader  in  war  but  with  little  or  no  power  in  peace.  Any  'fur- 
ther union  of  different  volosts  was  temporary,  and  no  estab- 


RUSSIA  385 

lished  authority  over  tribe  or  race  was  recognized.  They 
tilled  the  soil,  used  coined  money  of  other  nations,  and  had 
considerable  oommerce.  They  were  workers  of  iron  and 
made  swords  for  export. 

The  foundation  of  the  Russian  state  starts  from  the  ac- 
cepted date  of  862,  when  the  Variagi  came  to  rule  over  the 
Slavs  of  Novgorod  and  vicinity,  by  invitation  of  the  people 
it  is  said.  Rurik,  his  two  brothers  and  their  military  follow- 
ing came  to  establish  order  and  defend  the  Slavs.  Rurik  first 
settled  at  Lake  Ladoga,  and  at  Novgorod  after  the  death  of 
his  brothers.  Two  other  Variagi  w^ent  down  to  Kief  and 
became  leaders  df  the  Poliane.  After  the  death  of  Rurik  his 
brother  Oleg  subdued  Kief,  extended  his  dominion  over  most 
of  the  Russian  Slavs  and  in  907  attacked  Constantinople  and 
imposed  tribute  on  it.  Igor,  son  of  Rurik,  succeeded  Oleg, 
and  on  his  death  his  widow  Olga  became  regent  during  the 
minority  of  her  son  Sviatoslaf.  She  began  her  reign  with 
bar*barous  massacres  of  the  Drevliane,  by  some  of  whom  her 
husband  had  been  assassinated,  and  was  afterward  converted 
to  Christianity,  but  her  son  refused  to  follow  her  example  and 
but  few  of  her  subjects  accepted  her  faith.  On  the  death  of 
Sviatoslaf  the  empire  was  divided  among  his  three  sons,  who 
ruled  respectively  at  Kief,  Novgorod  and  over  the  Urevliane. 
Civil  wars  followed,  resulting  in  the  death  of  two  of  the 
brothers  and  the  consolidation  of  the  whole  under  Vladimir. 
He  was  a  cruel,  sensual  despot,  who  took  five  wives  and  kept 
concubines  by  the  hundreds.  He  became  dissatisfied  with  the 
old  religion  and  made  war  on  Constantinople  to  conquer  the 
Greek  Christianity.  As  terms  of  peace  he  demanded  the 
daughter  of  the  Greek  emperor  in  marriage  and  accepted  bap- 
tism. He  then  proceeded  in  a  truly  autocratic  manner  to 
throw  down  the  ancient  idols  and  march  the  people  into  the 
rivers  to  be  baptized.  His  conversion  is  said  to  have  been  fol- 
lowed by  a  radical  reformation  of  character,  by  the  founding 
of  schools  and  many  other  works  for  the  good  of  the  people. 
Vladimir  partitioned  his  dominions  among  his  sons  and  even 
gave  a  porti(jn  to  a  nephew.  They,  as  usual,  fought  among 
themselves,   and   Taroslaf  became  master  of   rdl.      His   reign 


386  EVOLUTION  OF  GOVERNMENTS  AND  I^WS 

from  1 015  to  1054  was  a  brilliant  one  and  placed  Russia 
among  the  leading-  states  of  iuirope.  He  promulgated  the 
first  code  of  Russian  laws.  It  recognized  the  avengers  of 
blood  and  fixed  the  amount  of  money  to  be  paid  for  crime; 
allowed  judicial  duels,  trial  by  ordeal  of  red  hot  irons  and 
boiling  water,  by  oath  with  compurgators,  and  also  provided 
for  trial  by  a  judge  and  jury  of  twelve  men.  Punishment  by 
death,  whipping  or  imprisonment  was  unknown.  The  rule  of 
the  Variagi  was  not  of  autocrats  with  firmly  established 
authority,  exercised  through  a  system  of  subordinate  ofticials. 
The  prince  occupied  relations  similar  to  the  Norse  and  Frank 
leaders  with  their  bands  of  military  companions  and  followers 
called  the  driijina.  They  were  his  council  oif  state  and  his 
guard.  From  them  he  chose  governors  of  towns  and  con- 
stituted courts  of  justice.  They  ate  at  his  table  and  exercised 
a  powerful  influence  on  his  policy.  Sviatoslaf  answered  his 
mother  Olga's  exhortations  to  become  a  Christian  by  saying 
that  his  drujina  would  mock  him.  He  owed  his  strength 
to  them  and  in  order  to  retain  it  was  forced  to  consult  their 
wishes.  They  were  free  to  transfer  their  allegiance  to  another 
when  they  chose.  Prince  and  drujina  were  engaged  in  a  com- 
mon enterprise  and  lived  from  the  tribute  they  extorted.  This 
was  fixed  arbitrarily,  and  Igor  lost  his  life  by  attempting  to 
force  further  tribute  from  the  Drevliane,  after  he  had  fleeced 
them  once.  The  drujina  was  divided  into  three  classes,  of 
whom  the  boyars  were  the  highest.  What  commerce  there 
was '  was  carried  on  by  the  prince  and  his  armed  warriors. 
The  mass  of  the  population  were  peasants — muzhiks,  and 
slaves.  The  leading  city  in  the  time  oif  Rurik  and  for  a 
considerable  period  thereafter  was  Novgorod,  which  is  said 
to  have  then  had  100,000  inhabitants.  It  was  a  republic  with 
ruling  power  in  the  assembly  of  citizens,  the  vetche,  which  was 
convoked  by  ringing  the  bell.  They  dictated  terms  to  princes 
and  received  such  rulers  as  they  pleased  and  on  their  own  con- 
ditions, laroslaf  confirmed  and  defined  the  privileges  of 
Novgorod,  which  subsequent  princes  were  required  to  take  an 
oath  to  observe.  The  revenues  he  might  exact  were  strictly 
limited,  as  also  were  his  judicial  and  jwlitical  functions.     He 


RUSSIA  387 

could  not  execute  justice  without  the  concurrence  of  the 
posadnik,  nor  reverse  a  judgment  nor  take  a  suit  away  from 
the  city.  In  conflicts  between  citizens  and  the  prince's  men  a 
mixed  tribunal  decided.  He  could  impose  no  garrison  nor 
colony  on  them.  The  chief  officer  of  the  city  was  the  posad- 
nik. He  was  charged  with  the  defense  of  civic  rights,  and 
shared  with  the  prince  the  judicial  powers  and  the  apportion- 
ment of  taxes.  He  governed  the  city,  commanded  the  army 
and  directed  its  diplomacy.  The  next  in  authority  was  the 
teusatski,  who  was  military  chief  and  entrusted  with  the  de- 
fense df  the  rights  of  the  people  as  a  sort  of  tribune.  Novgo- 
rod also  preserved  its  spiritual  independence  by  electing  its 
own  archbishop,  who  ranked  among  the  chief  dignitaries  of 
the  city.  The  citizens  not  only  elected  but  retained  the  power 
to  depose  him.  Novgorod  became  a  German  market,  and 
German  settlements  were  made  not  only  at  Novgorod  but 
also  at  Ladoga  and  Pskof.  Their  markets  were  protected  by 
stockades,  and  they  maintained  a  monopoly  of  the  western 
trade.  Pskof  and  Viatka  developed  later,  about  the  twelfth 
century,  as  little  republics  similarly  constituted  to  Novgorod. 
The  period  following  the  death  of  laroslaf  in  1054  till  the 
appearance  of  the  Tartars  in  1224  was  one  of  fierce  and  cruel 
wars,  due  largely  to  the  division  of  the  country  among  the 
heirs  of  deceased  princes,  aggravated  by  a  conflict  as  to  the 
rule  of  inheritance  between  the  old  Slavonic  leadership  df  the 
oldest  member  of  the  family,  by  which  brother  succeeded 
brother,  and  the  claims  of  the  sons.  From  the  dreary  accounts 
of  bloody  cruelty  and  constant  wars  no  new  lesson  can  be 
drawn.  It  has  had  its  counterpart  in  the  history  of  nearly 
every  nation  on  earth.  The  advent  of  the  Mongols  in  1224 
marks  the  beginning  of  an  important  epoch  in  Russian  history. 
The  dominion  of  Genghis  Kahn  had  already  been  extended 
over  Manchuria,  Northern  China,  central  and  western  Asia. 
Nothing  could  exceed  the  fierceness  and  barbarity  of  his  con- 
quests. Indiscriminate  slaughter,  rapine,  destruction  of  cities 
and  property,  death,  desolation  and  ruin  everywhere,  were  the 
penalties  of  resistance,  and  submission  often  gained  no  pro- 
tection.   His  armies  were  recruited  from  all  nations,  and  with 


388  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

prestige  once  established  he  drew  to  his  aid  a  heterogeneous 
army,  made  up  from  all  the  nations  with  which  he  came  in 
contact.  Against  his  hordes  the  ever  jealous  and  warring- 
petty  princes,  who  ruled  in  the  dismenTl>ered  states  df  Russia, 
could  oppose  no  effectual  resistance.  The  Russians  of  that 
time  were  not  very  superior  in  their  rules  of  warfare  to  the 
Mongols.  When  the  ambassadors  of  the  latter  came  to  them 
asking  that  they  abstain  from  interference  in  their  contest 
with  the  Paluvtsin,  the  Russians  responded  by  killing  the 
ambassadors.  In  the  battle  which  followed  the  Russian  army 
was  annihilated.  This  battle  however  was  not  followed  by 
the  immediate  subjugation  of  any  large  territory.  The  Mon- 
gol hordes  returned  to  the  east,  where  they  were  occupied 
with  other  conquests.  In  1237  Oktai,  one  of  the  sons  and 
successors  of  Genghis,  sent  his  nephew  Batu  with  an  immense 
army  into  Russia.  He  quickly  overran  the  grass  country  of 
the  south  and  spread  ruin  and  desolation  everywhere.  His 
army  penetrated  the  forests  to  within  fifty  miles  of  Novgorod. 
Mangu,  a  grandson  oif  Genghis,  took  and  destroyed  Kief  and 
put  its  people  to  the  sword.  The  difiiculties  of  a  hilly  timbered 
country  impeded  the  progress  of  a  horde  accustomed  to  the 
open  plains,  and  the  obstinate  defense  of  Olmutz  in  Moravia 
checked  their  advance.  The  death  of  Oktai  recalled  Batu  to 
the  east,  and  the  w^lve  of  conquest  had  reached  its  western 
limit.  Though  they  passed  through  Hungary  into  Germany, 
they  gained  no  permanent  foothold  beyond  Russia.  Batu 
established  his  capital  at  Sarai  on  the  lower  Volga,  where  as 
representative  of  the  great  Kahn  he  ruled  in  barbaric  splendor. 
By  the  persuasion  of  Alexander  Nevski  Novgorod  paid  tribute 
to  the  Mongols.  Russian  princes  were  required  to  appear  at 
the  capital  of  the  Golden  Horde  and  do  homage  to  its  chief. 
In  many  instances  they  were  compelled  to  appear  in  the  court 
of  the  Great  Kahn  on  the  further  side  of  Asia.  The  rule  of 
the  Mongols  was  that  of  military  chiefs,  interested  in  extort- 
ing tribute  and  extending  their  power,  but  taking  no  interest 
in  the  local  affairs  of  the  people.  They  left  those  they  spared 
with  their  social  system,  their  local  courts  and  laws  unchanged, 
and  with  possession  of  their  lands,  which  their  nomad  con- 


RUSSIA  389 

querors  had  no  desire  to  cultivate.  The  conquered  people 
were  required  to  pay  a  capitation-tax,  levied  on  rich  and  poor 
alike,  to  be  paid  in  money  or  furs.  The  revenue  was  col- 
lected by  farmers  supported  by  the  agents  and  guards  of  the 
Kahn.  In  course  of  time  the  princes  of  Moscow  undertook 
the  collection  from  their  own  subjects.  The  Russians  were 
also  required  to  furnish  their  quota  of  troops.  While  the 
Russian  princes  were  allowed  to  retain  their  places,  it  was  as 
subjects  of  the  great  Kahn,  to  whose  decision  they  were  re- 
quired to  submit  their  controversies  instead  of  fighting  them 
out.  The  corruption  of  the  Kahn's  court  is  reputed  to  have 
been  extreme.  The  Mongols  were  converted  to  Mohammedan- 
ism about  1272.  After  they  ceased  to  extend  their  dominions 
by  conquest,  their  manners  soiftened  and  we  hear  no  more 
of  their  extreme  ferocity.  During  the  time  of  their  ascend- 
ency the  Russians  waged  successful  war  with  the  Swedes  and 
Livonians  and  strengthened  their  position  on  the  west  and 
north.  With  the  rise  of  Poland  there  was  a  tendency  to  Rus- 
sian concentration  about  IMoscow.  ■ 

In  the  reign  of  Ivan  III  the  Muscovite  autocracy  began  to 
again  consolidate  the  Russian  states.  Novgorod  had  changed 
from  a  democracy,  devoted  to  the  common  welfare,  to  an 
aristocracy  divided  into  discordant  factions.  In  1470  it  sub- 
mitted to  the  sway  of  Ivan.  By  assuming  the  role  of  judge 
between  the  warring  factions  he  took  away  from  them  their 
ancient  and  highly  prized  privilege  of  determining  all  their 
causes  at  home.  The\'  rebelled  and  he  subdued  them  and 
finally  abolished  the  vctchc  and  posadnik,  and  in  1478  the  re- 
public df  Novgorod  ceased  to  exist.  The  Tartar  empire  had 
broken  into  fragments,  and  Ivan  finally  threw  off  the  yoke  of 
the  Horde.  Vasili  Ivanovitch  took  away  the  Hberties  of  Pskof 
as  his  father  had  those  of  Novgorod,  abolished  its  z'ctche, 
carried  off  its  bell,  placed  his  lieutenant  in  it  as  governor  and 
transj)lanted  its  principal  citizens  in  remote  parts,  as  his  father 
had  those  of  Novgorod.  Ivan  IV,  the  tcrril)le.  extended  the 
boundaries  of  his  empire  and  at  the  same  time  hardened  the 
autocracv.  His  merciless  executions  were  numbered  by  thou- 
sands and  included  many  of  the  proudest  boyars  of  the  empire. 


390  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

111  1556  he  assembled  the  States  General  for  the  first  time, 
and  he  was  the  organizer  of  the  st relit::;  or  National  Guard. 
The  long  and  vigorous  reigns  of  Ivan  III,  Vasili  and  Ivan 
IV,  extending  from  1462  to  1584,  witnessed  the  consolidation 
af  the  empire,  the  termination  of  the  policy  of  dividing  it  as 
an  inheritance  and  the  centralization  of  power  in  the  hands  of 
the  Czar.  The  policy  of  these  monarchs  was  mainly  directed 
toward  the  firm  establishment  of  the  power  of  the  Czar  over 
the  nobility.  The  drtijina,  who  were  his  companions  in  the 
palace  in  peace  and  in  the  camp  in  war,  had  no  taste  for  ad- 
ministrative details,  and  in  the  organization  of  the  bureau- 
cratic system,  through  which  the  central  power  acts  on  the 
multitude,  it  became  necessary  to  call  in  the  more  humble  and 
more  scholarly  sons  of  merchants  and  priests.  A  great  num- 
ber of  these  bureaus,  twenty  to  thirty,  with  varying  and  ill- 
defined  functions  were  instituted.  One  had  charge  of  supply- 
ing the  table  of  the  Czar,  the  princes  of  the  blood  and  nobles 
whom  he  fed.  Others  looked  after  other  domestic  and  court 
matters.  Then  there  were  the  prikaain  of  the  palace,  of  the 
revenue,  of  secret  afifairs,  petitions,  posts,  police,  buildings, 
slaves,  monasteries,  army,  embassies  and  of  the  provinces. 
The  revenues  were  derived  from  the  products  of  crown  lands, 
paid  in  kind  or  in  money,  from  a  tax  on  corn,  on  fires,  cus- 
toms, crown  taverns,  fines  and  confiscations.  Certain  branches 
of  trade  were  also  monopolized  by  the  Czar  and  used  as  a 
means  of  extorting  money  from  the  merchants. 

Three  grades  of  courts  of  justice  were  established,  that  of 
the  starosta  of  the  district,  a  magistrate  for  every  hundred 
plows,  the  voievod  in  the  chief  city  af  each  province  and  the 
Supreme  Court  of  Moscow.  Trials  were  had  on  written  or 
oral  proofs,  a  party  being  allowed  to  testify  in  the  absence  of 
other  proof,  or  by  judicial  combat.  Debtors  were  treated  with 
the  greatest  rigor.  An  insolvent  was  liable  to  be  flogged  daily 
for  thirty  or  forty  days,  after  which,  if  no  one  would  pay  his 
debts,  he  was  sold  and  his  wife  and  children  hired  out  to 
service.  Persons  charged  with  theft,  murder  or  treason  were 
subjected  to  a  great  variety  of  tortures.  Heretics  and  sorcer- 
ers were  burned.     Counterfeiters  had  hot  metal  poured  down 


RUSSIA  391 

their  throats.  These  were  for  the  humble  subjects.  A  noble- 
man who  slew  a  initjik  was  only  fined  or  whipped,  and  ilf  he 
killed  his  slave  there  was  no  penalty,  for  he  might  do  as  he 
pleased  with  his  chattel.  The  church  was  made  subservient 
to  the  Czar,  and  the  clergy  were  instructed  in  the  performance 
of  imposing  ceremonies,  but  knew  little  of  religion  or  morality. 

The  army  was  mostly  cavalry.  The  imperial  guard  of  about 
eight  thousand  was  made  up  of  young  courtiers.  All  the 
nobles  of  the  empire,  counted  at  about  eighty  thousand,  served 
on  horseback  and  defrayed  their  expenses  from  the  revenues 
of  their  lands.  The  levy  of  the  free  peasants  amounted  to 
about  three  hundred  thousand.  The  strclitzi,  organized  by 
Ivan  IV  and  kept  at  Moscow,  numbered  twelve  thousand. 
Many  foreigners  were  taken  into  the  service.  Soldiers  fur- 
nished their  own  rations  mainly  for  short  campaigns.  Diplo- 
matic relations  were  established  with  other  countries  of 
Europe.  The  lower  orders  of  Russia  were  made  up  of:  i, 
chattel  slaves ;  2,  peasants  attached  to  the  lands  of  the  nobles, 
legally  free  in  person  but  lx)und  to  till  their  masters'  lands, 
and  3.  free  cultivators,  who  had  the  right  to  move  from  place 
to  place  and  change  masters.  The  second  class  was  by  far 
the  most  numerous.  These  considered  themselves  the  real 
proi)rietors  of  the  land,  not  as  individuals,  but  as  communi- 
ties, inirs.  The  rnir.  not  the  individual,  paid  taxes  to  the  Czar 
and  dues  to  the  landlord.  The  towns  were  governed  either 
by  a  voiez'odni,  appointed  by  the  prince,  or  a  starosfa,  elected 
by  the  assembly  from  among  the  gentry.  In  assessing  the 
imposts  the  sfarosta  convoked  the  elders  of  the  towns  and  rural 
mirs.  In  the  family  the  father  had  arbitrary  power  over 
wife,  children  and  sons'  wives. 

The  nobleman  always  had  a  retinue  of  slaves,  which  he 
kept  about  his  person  and  ruled  with  such  rigor  as  accorded 
with  his  disposition.  The  practice  of  secluding  the  women 
at  home  and  veiling  when  away  prevailed.  Drunkenness  and 
dcbaucherv  were  common  in  a  state  of  society  where  illiteracy 
was  almost  universal.  Sui)crstition  and  ignorance,  there  as 
elsewhere,  were  inseparable  companions.  Holy  water  and 
relics  were  more  relied  on  for  miraculous  cures  than  the 
medicines  of  the  physicians,  and  were  perhaps  safer  in  the 


392  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

then  existing  state  of  the  profession.  J)urino-  the  reign  of 
Feodor,  son  of  Ivan  IV,  the  regent  Boris  (kulenof  promul- 
gated the  first  Ukase  forbidding  peasants  to  remove  from  one 
estate  to  another.  This  was  done  in  the  interest  of  the  poor 
nohihty,  to  prevent  the  great  ones  from  drawing  away  the 
laborers  and  thereby  leaving  their  estates  uncultivated.  The 
number  of  farmers  being  inadequate  to  till  more  than  a  small 
part  df  the  land,  the  great  lords  by  offering  superior  ad- 
vantages could  prevent  the  cultivation  of  the  small  estates. 
The  purjx)se  of  Boris  in  this  order  was  to  enable  the  poorer 
nobility  to  render  military  service  and  defray  their  expenses, 
which  they  could  not  do  without  the  aid  of  the  serfs.  After 
the  death  of  Feodor,  who  was  mentally  so  weak  as  to  really 
exercise  no  authority,  and  of  his  brother  Dimitry  who  was 
l;robably  assassinated,  the  royal  line  failed  and  a  time  of 
tur'bulence  ensued.  For  a  very  short  time  Vladislas  of  Po- 
land was  in  possession  of  Moscow  and  recognized  by  the 
boyars  as  Czar,  but,  led  by  Minin  the  butcher  of  Kozma,  the 
Russians  gathered  and  drove  out  the  Poles,  Polish  dominion 
was  hardly  a  reality  and  had  no  effect  whatever  on  the 
growth  of  the  autocracy. 

In  1 613  a  great  national  assembly  gathered  at  Moscow, 
composed  of  church  dignitaries,  and  delegates  oif  the  nobles, 
the  merchants,  towns  and  districts.  Michael  Romanof,  a 
youth  of  fifteen,  was  elected  Czar,  receiving  all  the  votes,  and 
became  the  founder  of  the  existing  dynasty.  By  raising  his 
father,  Philaret,  to  the  rank  of  patriarch  and  associating  him 
in  the  administration  of  the  government  Michael  was  greatly 
strengthened.  From  the  companions  and  military  followers 
of  the  early  princes  there  had  developed  a  proud  nobility,  jeal- 
ous and  contentious  over  questions  of  precedence.  Each  in- 
sisted on  maintaining  rank  equal  or  superior  to  that  attained 
by  anv  of  his  ancestors,  and  refused  to  accept  a  public  station 
lower  than  the  highest  held  by  any  of  iiis  predecessors.  Con- 
tentions over  these  matters  occasioned  ceaseless  striife  and 
annoyance  at  all  great  gatherings.  Feodor  III  (1676  to 
1682)  resolved  to  put  an  end  to  this  troul)le.  He  required  all 
the  noble  families  to  deliver  into  court  their  pedigrees,  that 


RUSSIA  393 

they  might  be  examined,  on  the  pretext  that  he  wished  to 
correct  errors  in  them.  He  then  convoked  the  nobles  and 
with  the  assistance  of  the  clergy  burned  all  the  books  of  pedi- 
grees before  their  eyes. 

This  was  soon  followed  by  Peter  the  Great  (1689-1725) 
with  an  abolition  of  all  nobility,  except  that  based  on  public 
service,  civil  or  military.  Though  thoroughly  saturated  with 
the  spirit  of  autocracy  and  accustomed  to  use  his  arbitrary 
powers  without  mercy,  Peter  was  still  a  great  reformer  of  the 
most  practical  kind.  He  perceived  the  superior  industrial  and 
commercial  development  of  Western  Europe,  and  with  the 
spirit  of  the  earnest  searcher  for  knowledge  he  strove  to  learn 
their  ways  and  their  arts,  not  their  speculative  philosophy  or 
forms  of  government.  He  traveled  into  other  lands  and  even 
worked  as  an  apprentice  in  a  ship  yard  in  Holland.  His  eyes 
were  opened  to  some  of  the  most  serious  ddfects  of  the  Rus- 
sian system  and  some  of  the  wrongs  habitually  inflicted  on 
the  weak.  He  put  an  end  to  the  seclusion  of  women  and  in- 
troduced western  fashions  of  dress  and  manners.  He  abol- 
ished the  flogging  of  insolvent  debtors  and  the  patrarchate. 
He  remodelled  the  organization  of  the  army  in  accordance 
with  western  methods  and  'began  the  construction  of  a  navy. 
He  founded  St.  Petersburg  on  the  Neva,  whence  he  could  com- 
municate with  the  outside  world  by  sea,  having  wrested  the 
northern  country  from  the  Swedes.  He  brought  into  the 
empire  artisans  of  all  classes  from  every  country  to  instruct 
his  subjects  in  manufacturing  and  ship  building.  He  encour- 
aged trading  and  divided  the  merchants  into  guilds.  But 
with  all  his  innovations  he  jealously  maintained  the  autocracy, 
applied  the  knout  and  the  axe  as  he  deemed  best. 

Though  the  history  of  the  succession  of  rulers  (from  the  time 
of  Michael  shows  the  usual  incidents  of  intrigues,  murders, 
factions  and  palace  troubles  of  various  kinds,  the  central  idea 
of  an  autocracy  with  unlimited  power  has  been  steadily  as- 
serted by  the  Czars  and  acquiesced  in  l)y  the  nation.  The 
system  of  administration  has  been  shaped  to  effectuate  auto- 
cratic rule.  The  policy  of  conquest,  colonizati(jn  and  Russian- 
izing has  been  steadily  and  successfully  adhered  to,  with  the 


394  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

result  that  the  Czar  now  rules  over  an  empire  unequalled  in 
many  resj^ects  by  any  other  in  the  world.  Not  only  have  the 
Tartars,  who  so  lonj^-  compelled  the  Muscovites  to  pay  tribute 
and  acknowledge  their  supremacy,  been  shorn  of  all  dominion 
in  Europe,  but  that  vast  breeding  ground  of  Asia,  whence  have 
swarmed  out  barbaric  hordes  to  sweep  with  cyclonic  force 
over  the  states  of  Europe,  has  been  reduced  to  the  sway  of  an 
European  state,  and  is  now  being  colonized  by  Slavs,  who 
carry  with  them  the  customs  and  the  language  oif  the  Mus- 
covites. The  Turks,  kinsmen  of  the  Mongols,  find  in  Russia 
their  most  inveterate  and  persistent  enemy,  and  little  by  little 
have  been  forced  to  withdraw  from  Europe. 

At  the  base  of  Russia's  social  system  it  still  has  the  demo- 
cratic mir  and  patriarchal  family.  Though,  looked  at  through 
western  eyes,  the  government  is  regarded  as  arbitrary,  cruel, 
corrupt  and  almost  unmitigatedly  bad,  it  has  undertaken  and 
completed  a  railroad  across  the  Asiatic  continent  and  taken 
the  lead  in  calling  a  peace  congress  to  enable  European  states 
to  reduce  their  vast  armies.  Unfortunately  this  has  not  saved 
it  from  a  most  humiliating  war  with  Japan,  or  the  great  war 
now  raging.  Whatever  the  faults  of  the  Russian  system,  it 
must  be  conceded  that  it  is  adapted  to  vast  expansion  over 
such  people  as  it  deals  with.  How  well  it  ministers  to  their 
welfare  is  another  subject. 

The  most  notable  legislative  acts  since  the  time  of  Peter  the 
Great  are  the  ukases  of  1861  and  1866  liberating  the  serfs, 
the  judiciary  acts  of  Alexander  II  and  the  establishment  o(f 
the  Duma  in  1905  by  Nicholas  II.  This  was  a  first  step  in 
the  transition  from  an  autocracy  to  a  constitutional  mon- 
archy. By  the  manifesto  of  Oct.  17,  1905  Nicholas  decreed 
that  no  measure  should  become  a  law  without  the  consent  of 
the  Imperial  Duma,  a  freely  elected  national  assembly. 
Though  three  successive  Dumas  have  been  elected  and  held 
their  sessions,  the  transition  period  is  not  definitely  passed. 
The  Czar  still  asserts  autocratic  ix)wer  so  far  as  he  deems  it 
necessary. 

By  the  ukase  of  Eeb.  20,  1906,  the  Imperial  Council  was 
associated  with  the  Duma  as  the  upper  h(^use  of  the  national 


RUSSIA  395 

legislature.  This  Council  consists  of  196  members,  of  whom 
ninety-eight  are  appointed  by  the  Emperor  and  the  other 
ii.inety-eight  are  elective.  Of  the  elective  members  three  are 
chosen  by  the  monks,  three  by  the  secular  clergy,  eighteen  by 
the  corporations  of  nobles,  six  by  the  academy  and  universities, 
six  by  chambers  of  commerce,  six  by  the  industrial  councils, 
thirty-four  by  the  governments  having  semstvos,  sixteen  by 
those  having  no  zenistvos,  and  six  by  Poland.  It  is  apparent 
from  the  composition  of  the  Council  that  imperial  influences 
dominate  in  it. 

The  Duma  is  the  lower  House  of  the  parliament  and  con- 
sists of  442  members  elected  by  a  very  complicated  electoral 
system,  designed  to  give  control  to  the  land-holding  class, 
while  allowing  the  poor  to  vote.  In  the  first  two  Dumas  the 
radical  popular  elements  predominated.  To  give  the  con- 
servatives control  the  method  of  election  and  basis  of  repre- 
sentation were  changed,  so  that  no  matter  how  large  a  popular 
majority  the  liberals  may  have  the  land-owners  will  still  be 
able  to  name  the  majority  of  the  Duma. 

The  Russian  parliament  thus  constituted  shares  with  the 
emperor  the  legislative  power,  except  in  measures  dealing  with 
the  organization  of  the  army  and  navy.  The  despotism  has 
not  yet  given  up  the  instruments  through  which  despotism  may 
be  perpetuated.  Any  member  may  propose  a  law,  but  it  must 
be  submitted  to  the  minister  of  the  department  affected  by  it, 
who  may  consider  it  for  a  month  and  then  has  the  right  to 
prepare  the  final  draft  for  consideration  of  the  House.  The 
ministers  are  accountable  to  the  emperor,  not  to  the  parlia- 
ment. The  Czar  has  the  power  under  extraordinary  circum- 
stances when  the  Duma  is  not  sitting  to  issue  ordinances 
having  the  force  of  law.  While  these  must  be  laid  'before  the 
Duma  at  its  next  sitting,  the  reserved  powers  to  proclaim  a 
state  of  siege  and  to  prorogue  or  dissolve  the  Duma  leave  the 
Emperor  with  absolute  power  whenever  he  sees  fit  to  use  it. 
Nevertheless  the  Duma  as  the  representative  body  df  the  na- 
tion has  a  powerful  and  growing  influence  and  will  doubtless 
dominate  when  it  has  capacity  tf)  direct  public  affairs. 

By  the  law  of  Oct.  18,  1905,  a  council  of  ministers  to  assist 


396  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  Emperor  in  the  supreme  adniiiiistrc'ttion  was  created  with 
a  minister  president.  This  council  consists  of  the  ministers 
of  (i)  the  Imperial  Court;  (2)  Foreign  Affairs;  (3)  War 
and  Marine;  {4)  Finance;  (5)  Commerce  and  Industry;  (6) 
Interior;  (7)  Agriculture;  (8)  Ways  and  Communication; 
(9)  Justice;  (10)  Public  Instruction.  Aside  from  these  there 
are  the  Comptroller  and  the  Emperor's  private  Chancery. 
There  is  no  joint  or  common  responsibility  of  the  ministers. 
Each  is  accountable  to  the  Czar  and  to  him  alone,  and  may 
pursue  such  policy  as  the  Czar  authorizes  without  reg*ard  to 
the  views  of  the  heads  of  other  departments.  The  Ministers 
however  meet  in  Council  for  consultation.  They  are  presided 
over  by  a  President  of  the  Council  of  Ministers,  named  by 
the  Czar.  Important  matters  arising  in  either  bureau  may  be 
discussed  in  these  meetings  or  taken  to  the  emperor  privately 
as  he  may  prefer.  Unity  of  control  and  direction  rests  in 
the  Czar  alone. 

Each  minister  is  assisted  by  a  council  which  seldom  meets, 
and  also  has  one  or  two  assistants  who  actively  participate  in 
the  transaction  of  affairs.  Most  o/f  the  bureaus  are  divided 
into  departments  according  to  the  nature  of  their  duties,  and 
have  officials  and  clerks  charged  with  the  minor  details. 

The  Senate,  established  by  Peter  the  Great  and  designed 
by  him  as  the  chief  g-overning  body  under  him,  though  now 
of  far  less  importance  than  the  Council,  has  seven  depart- 
ments exercising  administrative  functions,  through  which  the 
laws  are  promulgated,  the  acts  of  governors  examined  and 
their  conflicts  with  Zcmstvos  adjudicated.  Two  departments 
are  the  courts  of  review  and  constitute  the  highest  court  of 
the  empire,  and  another  pronounces  judgments  in  political 
causes.  The  Holy  Synod,  made  up  of  metropolitans  and 
bishops,  rules  religious  affairs. 

For  purposes  of  administration  the  European  empire  is  di- 
vided into  fifty  gubcrniya  in  Russia  and  ten  in  Poland.  The 
Asiatic  dominions  are  divided  into  the  lieutenancy  of  Caucasia 
and  the  governments  of  Turkestan,  Stepnoye,  East  Siberia 
and  Amur.  Each  government  is  divided  into  districts,  nycad, 
under  a  police  captain,  isprazmik.    At  the  head  of  each  gitber- 


RUSSIA  397 

niya  is  a  governor.  Formerly  his  powers  were  those  o(f  a 
local  autocrat,  as  representative  of  the  Czar,  but  now  they  are 
greatly  curtailed.  He  is  assisted  by  a  vice  governor  and  a 
government  council,  which  however  is  merely  advisory.  By 
the  ukase  of  1785  Catharine  II  confirmed  on  the  dvorniastvo, 
the  nobility  of  each  province,  the  right  to  name  the  local 
functionaries  and  justices,  and  to  supervise  and  control  the 
local  administration,  justice,  police,  finances  and  all  matters 
of  local  interest.  Assemblies  were  held  once  in  three  years 
for  these  purposes,  and  they  appointed  the  isprazmiks  and  local 
justices.  Their  assemblies  sat,  elected  boards,  and  appointed 
commissions  to  inspect  the  governor's  accounts,  but  in  fact 
exercised  very  little  influence  on  the  administration,  which 
received  its  impulse  from  the  central  authority.  In  1864  the 
Zemstvo  or  territorial  assembly  was  established,  composed  of 
representatives  of  all  the  orders.  The  peasants,  the  towns 
and  the  nobility,  each  elect  their  representatives  separately. 
The  representation  is  apportioned  arbitrarily,  so  that  the  peas- 
ants, who  constitute  more  than  three-fourths  of  the  whole, 
have  less  than  forty  per  cent  of  the  delegates,  and  the  million 
landowners  have  over  forty-five  per  cent,  the  town  people 
choosing  the  balance.  The  mode  df  election  by  the  peasants  is 
that  the  heads  of  families  of  the  mirs  choose  a  council  for  the 
volost,  who  choose  electors  to  the  aemstvo.  These  convene 
and  name  the  delegates,  glasuyie,  who  compose  the  zemstvo. 
The  landowners  have  a  voice  in  the  election  of  their  dele- 
gates according  to  their  holdings,  the  small  proprietors  voting 
collectively.  Zemstvos  are  not  established  in  all  the  govern- 
ments, there  being  only  thirty-four  at  present.  The  powers 
conferred  on  the  dvorniastvo  was  substantially  all  transferred 
to  the  Zemstvo  with  others  added.  There  is  also  a  Zemstz'O 
of  the  district  with  local  powers  corresponding  to  those  of  the 
province.  These  relate  to  all  matters  of  purely  local  con- 
cern. They  apportion  the  taxes,  maintain  roads  and  schools, 
but  are  limited  in  their  expenditures  by  the  demands  of  the 
general  government  on  the  revenues.  To  much  of  their  legis- 
lation the  governor's  assent  is  necessary,  even  to  the  repair  of 
roads   and   the   increase   of   local   taxes.      To   other   acts   the 


398  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ratification  af  the  Minister  of  the  Interior  is  required,  such 
as  large  loans.  All  resolutions  of  the  provincial  zcmstvo  must 
be  submitted  to  the  governor,  who  has  a  suspensive  veto.  He 
must  send  in  his  decision  within  eight  days.  If  he  vetoes,  the 
^emstvo  must  again  consider  it,  and  if  again  passed  it  is  final, 
except  that  the  governor  may  still  refer  it  to  the  minister. 
The  controversy  is  then  decided  by  the  Senate.  Sessions  are 
held  annually.  For  the  execution  of  its  will  the  zemstvo  is 
tiependent  on  the  governor,  over  whom  it  has  no  control. 
The  demand  for  schools  and  the  exhibition  of  a  willingness 
to  pay  for  them  evidence  the  value  of  the  influence  of  the 
governed  in  their  own  behalf,  the  miijiks  showing  the  most 
interest  and  liberality  of  any  class  in  that  direction.  The 
worst  difficulty  met  in  building  up  the  educational  system  is 
the  interference  of  the  inspectors,  who  are  jealous  of  the  ef- 
fects of  education.  A  remarkable  piece  of  local  legislation, 
quite  in  keeping  with  the  ancient  system  of  land  tenures,  is 
compulsory  mutual  insurance  of  the  property  of  the  peasants 
against  fire.  Among  the  institutions  introduced  by  the  zemst- 
vos  were  savings  banks,  local  postal  facilities,  construction  of 
highways  and  railroads,  draining  of  marshes  and  planting 
trees  on  the  steppes.  The  main  characteristic  of  the  work 
thus  far  i>er formed  by  them  is  that  it  is  for  the  general  good 
of  the  people.  To  check  the  freedom  of  expression  in  the 
zeinstvos,  by  a  subsequent  edict  it  was  provided  that  the  chair- 
man should  be  nominated  by  the  minister,  and  that  he  might 
interrupt  any  speech  or  stop  the  consideration  of  any  motion 
or  resolution,  which  in  his  opinion  was  inimical  to  the  gov- 
ernment. The  different  zenistvos  were  also  prohibited  from 
communicating  with  each  other. 

At  the  head  of  the  Judicial  System  of  the  empire  stands 
the  Senate.  In  reviewing  the  proceedings  of  inferior  tribu- 
nals it  limits  its  consideration  to  questions  of  law  and  affirms 
or  reverses  the  decision  of  the  lower  court,  and  in  case  fur- 
ther proceedings  are  required  remands  the  cause  to  it.  It 
exercises  original  jurisdiction  in  the  trial  of  accused  members 
oi  the  administration,  and  is  the  auditor  of  accounts.  It  is 
a  department  of  heraldry  and  the  supreme  court  for  the  trial 


RUSSIA  399 

of  political  causes  and  offenses  against  the  State,  It  has  juris- 
diction over  differences  between  members  of  the  administra- 
tion, as  well  as  between  the  governors  and  the  zemstvos.  The 
department  of  supreme  appeal  is  divided  into  two  sections, 
one  for  civil  and  the  other  for  criminal  matters,  which  have 
jurisdiction  of  causes  appealed  from  all  parts  of  the  empire. 
The  judges  of  these  departments,  as  well  as  of  the  district 
courts,  are  appointed  by  the  Czar.  There  is  a  nominal  right 
of  presentation  by  the  remaining  members  of  these  courts 
of  candidates  to  fill  vacancies,  'but  their  choice  must  be  sanc- 
tioned by  a  procureur-general,  who  represents  the  state  as 
one  of  the  officers  of  each  court.  This  right  of  presenta- 
tion does  not  extend  to  the  presidents  or  vice-presidents  of  the 
court,  but  only  to  the  other  judges,  and  the  candidates  pro- 
posed may  be  accepted  or  not. 

In  order  to  give  the  judges  an  appearance  of  independence, 
their  tenure  is  for  life,  unless  convicted  of  some  offense,  but 
while  they  may  not  be  arbitrarily  removed  from  office,  they 
may  be  transferred  to  a  distant  province  and  thus  in  effect 
condemned  to  exile.  Procureurs  are  appointed  by  the  ministry 
and  removable  at  pleasure. 

Substantially  contemporaneous  with  the  emancipation  of 
the  serfs  came  a  reformation  of  the  judicial  system.  At  the 
base  of  it  are  two  sets  of  courts.  For  the  peasants  there  are 
volost  courts,  elected  by  and  having  jurisdiction  over  peas- 
ants only  in  the  volost,  which  may  include  one  large  or  several 
small  mirs.  The  mirs  name  eight  candidates  from  among 
the  peasantry,  from  whom  the  chief  of  the  volost  selects  four 
to  sit.  To  be  eligible  a  man  must  be  thirty-five  and  able  to 
read  and  write,  where  such  selections  are  practicable.  The 
presiding  judge  of  the  court  is  selected  by  the  assembly  of 
elders  of  the  volost.  The  court  sits  at  least  once  a  fortnight, 
usually  on  Sundays  and  holidays.  It  has  jurisdiction  in  civil 
causes  involving  one  hundred  roubles  or  less,  and  in  petty 
misdemeanors  where  the  maximum  punishment  is  a  fine  of 
thirty  roubles,  seven  days'  imprisonment  or  six  days'  work  or 
twenty  strokes  with  the  rod.  Their  decisions  are  not  required 
to  be  in  accordance  with  general  law,  but  are  governed  by  the 


400  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

local  customs.  The  rod  however  may  only  be  used  on  the 
stron<;-  who  are  able  to  bear  it.  Of  i>etty  matters  their  juris- 
diction is  extensive,  covering  those  concerning  communal 
rights,  inheritances  and  other  matters  growing  out  of  the 
peculiar  organization  of  rural  communities.  Appeals  are  al- 
lowed to  the  assembly  of  cantonal  rural  chiefs  in  civil  cases, 
where  imprisonment  or  corporal  punishment  is  imposed.  By 
the  reforms  of  Alexander  II  justices  of  the  i)eace  elected  by 
the  district  ::;cnistz'os  had  jurisdiction  over  all  minor  civil 
cases  involving  five  hundred  roubles  or  less  and  criminal  cases 
])unishal)le  by  one  year's  imprisonment  or  three  hundred 
roubles  fine,  but  by  the  ukase  of  1889  these,  except  in  the  great 
cities,  were  abolished  and  in  lieu  cxf  them  the  office  of  rural 
chief  was  created  for  each  volost  with  substantially  the  same 
jurisdiction,  and  also  various  administrative  duties.  These 
chiefs  must  be  landowners,  belong  to  the  local  nobility,  and  are 
paid  a  salary  by  the  state.  They  are  nominated  by  the  gover- 
nor of  the  province  on  consultation  with  the  marshal  of  the 
nobility  of  the  district  and  confirmed  by  the  Minister  of  the 
Interior.  The  chief  has  supervision  of  the  financial  and 
police  alTairs  of  the  commune  and  nominates  the  members  of 
the  peasants'  volost  court.  From  the  decisions  of  the  chief  an 
appeal  lies  to  the  district  assembly  of  canton  chiefs.  They 
receive  in  rural  districts  2,200  roubles  per  year.  The  district 
courts,  which  are  given  general  original  jurisdiction  in  both 
civil  and  criminal  causes,  have  three  judges  and  a  jury.  The 
judicial  reforms  of  Alexander  II,  which  unfortunately  have 
not  been  steadily  carried  into  effect,  contemplated  the  com- 
plete separation  of  judicial  from  administrative  powers  and 
public  trials  on  the  oaths  of  witnesses  with  the  aid  of  advo- 
cates, following  the  most  advanced  models  of  western  nations. 
Of  these  district  tribunals  there  were  in  European  Russia 
about  sixty,  and  over  them  nine  appelate  courts  located  at 
St.  Petersburg,  Moscow,  Kazan,  Saratof,  Kharakof,  Odessa, 
Kief,  Smolensk,  and  Vilna.  In  trials  by  jury  the  court  ans- 
wers to  the  law  and  the  jury  only  as  to  the  facts.  The  un- 
expected acquittal  of  Vera  Zassulich  for  the  murder  of  Gen- 
eral Trepof  resulted  in  subsequent  denial  of  jinw  trial  in  simi- 


RUSSIA  401 

lar  cases,  which  were  transferred  to  a  department  of  the 
senate  or  heard  before  a  mihtary  court.  Reforms  in  the 
judicial  system  from  the  time  of  Catharine  II  to  the  present 
ha\e  been  introduced  modified  and  a'bandoned,  and  with  the 
theory  of  a  complete  centering  of  executive,  legislative  and 
judicial  power  in  the  Czar  still  fully  recognized,  all  innova- 
tions are  to  be  looked  on  as  tentative.  Until  the  judiciary  be- 
comes independent  of  the  will  of  the  Czar,  no  permanent 
separation  of  ix)wers  can  be  assured.  The  ministry  are  still 
afraid  oif  an  independent  judiciary,  and  the  system  of  ap- 
pointments is  calculated  to  insure  a  degree  of  subserviency  in 
the  courts.  The  vast  empire  is  ruled  in  fact  by  the  ministers 
and  their  agents. 

In  the  actual  administration  of  the  government  the  police 
department  plays  a  most  important  part.  There  are  two 
classes  of  police  officers,  one  the  regular  under  the  Minister 
of  the  Interior,  the  other  political,  directly  under  the  Czar 
himself.  In  the  districts  into  which  the  provinces  or  govern- 
ments are  divided  the  chief  officer  is  the  ispravnik,  a  police 
officer.  From  the  time  of  Catharine  II  lill  the  emancipation 
these  officers  were  elected  by  the  nobility,  but  are  now  ap- 
pointed by  the  governors.  A  great  multiplicity  of  duties  de- 
volve on  the  police  officers.  Through  them  all  administrative 
orders  must  be  executed,  conspiracies  must  be  detected,  con- 
spirators arrested  and  prosecuted.  They  are  health  officers, 
censors,  prosecutors  in  the  lower  courts,  overseers  of  recruits 
and  soldiers  of  the  reserve  and  supervisors  of  passports.  In 
the  small  tow-ns  and  country  there  is  no  protection  against  the 
arbitrary  exercise  of  their  authority.  It  was  through  the 
famed  Third  Section  of  the  Chancellery',  the  state  police,  that 
the  arbitrary  autocratic  powers  of  government  were  mainly 
exerted.  Though  this  has  been  in  form  abolished,  its  sub- 
stance is  still  preserved,  and  police  agents  enter  dwellings,  as 
well  as  all  other  places,  at  any  time  of  day  or  night  without 
process,  and  make  searches,  seizures  and  arrests  at  will.  The 
governors  of  provinces  close  at  will  any  industrial  establish- 
ment, forbid  an  individual  to  reside  in  a  city,  and  take  ix)liti- 
cal  suspects  away  from  the  regular  courts.     The  government 


402  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

may  at  any  time  place  any  province  or  district  under  a  "state 
of  extraordinary  protection"  under  the  most  arbitrary  military 
rule.  By  administative  decree  the  publication  of  any  periodi- 
cal or  other  publication  may  be  susi>ended  or  prohibited,  and 
an  educational  establishment  may  be  closed.  In  every  city  of 
any  importance  there  is  a  colonel  or  captain  of  police  to  whom 
no  place  may  be  closed  and  from  whom  nothing-  may  be  con- 
cealed. His  business  is  to  keep  all  under  surveillance,  officials 
as  well  as  citizens.  To  aid  him  he  has  secret  agents  scattered 
everywhere.  Every  indiscreet  remark  is  reported,  often  with 
direful  consequences. 

The  main  purpose  of  the  Czar  in  maintaining-  his  secret 
police  was  to  have  a  system  through  which  he  could  keep  in- 
formed of  the  doings,  not  merely  of  his  subjects  in  general, 
but  of  the  officials  of  the  empire  as  well.  Of  all  the  difficulties 
under  which  an  autocrat  ruling-  a  vast  empire  la1x)rs,  none 
is  greater  or. of  more  moment  than  that  of  gaining  reliable 
information  concerning  the  multiplicity  of  affairs  which  he 
is  called  on  to  direct.  A  secret  police,  composed  exclusively 
of  trustworthy  and  upright  men,  would  be  of  incalculable 
value  to  him,  but  made  up  of  corrupt  and  unreliable  ones  it 
becomes  a  means  for  perverting  the  best  of  intentions  on  the 
part  of  the  ruler. 

The  constitution  of  Russian  society,  while  now  undergoing 
some  changes,  is  still  essentially  the  same  as  for  several  hun- 
dred years.  More  than  eighty  per  cent  oif  the  total  population 
are  classed  as  peasants  and  live  mainly  in  their  rural  villages, 
iiiirs.  The  mir  is.  and  has  been  from  a  date  long  anterior  to 
the  establishment  of  the  empire,  a  democratic  self-governing 
community.  It  holds  its  lands  in  common  and  pays  its  dues 
to  the  government  as  a  unit.  The  afifairs  of  the  ?;;/;-  are  man- 
aged by  an  assembly  including  the  heads  of  all  the  families. 
The  tillable  lands  are  divided  and  apportioned  to  each  work- 
ing unit.  Women  charged  with  the  support  of  a  family  are 
entitled  to  take  part  in  the  assembly.  Between  the  mctnlx^rs 
of  the  community  there  is  equality  of  right  in  tlic  village 
property,  but  the  culture  is  not  in  common.  Pasture  lands, 
and  in  some  cases  meadow  and  timber  lands,  arc  used  in  com- 


RUSSIA  403 

mon,  the  hay  of  the  meadows  and  trees  of  the  forest  being 
divided  for  use.  The  custom  of  building  their  dwelhngs  in 
village  form  has  long  been  maintained,  and  communities  which 
have  settled  in  the  United  States  have  brought  this  custom 
with  them.  In  the  settlement  of  the  affairs  of  the  niir  unani- 
mous agreement  is  required.  All  are  required  to  attend  meet- 
ings of  the  iiiir.  The  majority  may  not  enforce  its  will  on 
the  minority.  The  assembl}-  of  the  inir  may  be  convoked  by 
the  call  of  any  one.  The  chief  officer  is  the  Starosta,  who  is 
paid  by  the  inir  and  is  charged  with  the  preservation  of  order 
in  the  community.  He  supervises  the  roads,  manages  the 
communal  funds,  the  schools  and  hospitals  if  any,  and  any 
other  public  institutions  of  the  mir.  He  looks  after  the  col- 
lection of  the  taxes  and  deals  with  the  government  officials  in 
payment  of  public  dues  and  other  matters.  He  is  a  general 
police  officer  and  arrests  persons  charged  with  offenses.  He 
is  the  general  business  representative  of  the  mir,  but  in  all 
things  he  is  its  servant,  not  its  master,  and  must  carry  out 
its  orders. 

A  collection  off  mirs,  varying  to  include  from  six  hundred 
to  four  thousand  persons  who  were  formerly  charged  with 
poll  tax,  is  called  a  volost.  At  the  head  of  this  is  a  starschina, 
elected  by  representatives  of  the  mirs,  who  holds  for  a  term 
of  three  years.  He  is  assisted  by  a  board,  volostttoyc  pravl- 
myc,  made  up  of  all  the  starostas  of  the  mirs  or  their  assist- 
ants or  special  representatives  chosen  by  the  mirs.  Important 
matters  are  decided  bv  this  board  and  minor  ones  only  by 
the  starosta.  Aside  from  these  officials  the  mirs  and  board 
employ  such  agents  as  their  affairs  require  and  pay  them  for 
their  services.  An  important  personage  in  the  mir  is  the  clerk, 
who  keeps  its  records,  and  though  without  any  recognized 
authority,  bv  reason  of  superior  education  often  wields  great 
influence.  The  scarcity  of  persons  able  to  write  frequently 
makes  it  necessary  to  bring  a  clerk  from  without. 

The  volost  assembly  elects  the  judges,  appoints  representa- 
tives to  district  assemblies,  and  provides  'for  roads,  schools, 
hospitals  and  public  works  which  a  single  mir  cannot  tinder- 
take.     The  assembly  of  the  mir  has  power  to  discipline  its 


404  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

members,  even  to  expel  them,  and  to  admit  new  ones.  Meet- 
ings are  usually  held  in  the  open  air  and  are  without  any  set 
form  of  procedure.  Sunday  after  mass  is  a  favorite  time  of 
meeting.  While  unanimous  agreement  is  necessary  to  a  de- 
cision in  the  mir,  a  majority  may  decide  in  the  volost  assembly. 

Similar  in  princii)le  to  the  peasants'  commune  is  the  artel,  a 
name  gi\en  to  an  association  of  workmen  engaged  in  the  same 
trade  and  working  in  concert.  A  head  man  is  elected  by  the 
members,  who  represents  the  artel  in  its  dealings  with  em- 
ployers and  the  outside  world.  The  wages  earned  by  all  are 
c(jually  divided  among  the  members.  The  artels  are  usually 
small,  seldom  exceeding  twenty  in  number,  and  they  expel 
and  admit  members  at  will. 

All  nobility  in  Russia  starts  from  official  station.  Two 
sorts  are  recognized,  hereditary  and  personal.  The  heredi- 
tary from  the  time  of  Peter  are  the  officers  of  the  army  having 
the  grade  of  ensign  or  higher  and  ci\ilians  of  equal  grade  and 
their  descendants.  Inferior  public  servants  belong  to  the  per- 
sonal nobility  and  are  merely  free  citizens.  The  number  is 
necessarily  very  great,  alx)ut  six  hundred  thousand  hereditary 
and  three  hundred  and  fiifty  thousand-  personal.  The  feudal 
system  never  obtained  in  Russia,  and  it  has  no  nobility  of  the 
kind  developed  in  western  Europe  having  hereditary  i)olitical 
power.  There  are  fourteen  grades  of  rank.  From  the  time 
of  Peter  special  dignities  have  been  conferred  by  special  di- 
ploma making  about  one  hundred  counts,  some  fifteen  princes 
and  sundry  barons.  Titles  are  inherited  ecpially  by  all  the 
children.  There  is  no  primogeniture.  Till  the  time  of  Alex- 
ander II  the  nobility  enjoyed,  in  common  with  the  merchants 
and  clerg}%  the  privileges  of  exemption  from  military  con- 
scription, payment  of  poll  taxes  and  corporal  punishment.  Of 
these  the  first  has  been  taken  away,  and  the  others  have 
ceased  to  be  distinctions  through  the  abolition  of  the  poll  tax 
and  flogging. 

Prior  to  the  emancipation  act  of  February  19,  1861,  the  title 
to  the  lands  of  the  empire  was  mainly  in  the  nobility  and  the 
crown.  There  was  assigned  to  each  village  a  tract  for  the 
cultivation  and  use  o/f  its  inhabitants,  but  thev  were  bound  to 


RUSSIA  405 

work  such  portion  of  their  time  as  the  landlord  exacted, — 
usually  one  half — on  his  estate  without  pay.  The  allowance 
of  land  to  the  peasant  to  cultivate  for  his  own  use  was  in 
effect  but  affording  him  the  means  to  live.  All  the  benetit  of 
his  strength,  in  excess  of  that  necessarily  expended  for  his 
maintenance  and  the  support  of  his  family,  went  to  the  land- 
lord. The  emancipation  act  of  1861,  which  applied  only  to 
the  serfs  of  the  nobility,  was  designed  to  allow  them  as  their 
own  the  lands  which  had  been  assigned  to  them  for  their  in- 
dividual support  theretofore,  but  it  is  said  that  through  defects 
in  the  practical  execution  oif  it  their  holdings  were  in  fact 
reduced,  and  thus,  so  far  as  land  is  concerned,  they  were 
rather  impoverished.  The  act  of  1866  emancipating  the 
peasants  on  the  crown  estates  was  much  more  liberal  and  gave 
them  twice  as  much  as  they  had  been  allowed  before. 

In  Russia  the  usurer  is  an  important  factor,  and  the  wide 
fluctuations  in  crop  returns  render  the  peasants  peculiarly  at 
his  mercy.  To  pay  taxes,  if  not  merely  to  sustain  life,  they 
must  frequently  borrow,  and  to  borrow  is  to  invite  ruin.  Se- 
curity for  small  loans  is  frequently  taken  in  the  form  of 
labor  contracts  to  the  neighboring  landlord,  from  which  the 
laborer  finds  it  difficult  to  extricate  himself.  The  liberation  of 
the  personal  servants  of  the  landlords  at  the  time  of  the  eman- 
cipation and  the  loss  of  their  lands  by  misfortune  or  improvi- 
dence by  peasants  have  produced  a  considerable  class  of  land- 
less farm  laborers,  which  seems  to  be  steadily  increasing.  The 
peasant  proprietors  hold  about  twenty-seven  per  cent  of  the 
lands  of  the  empire,  though  the  peasants  numl)er  more  than 
three-fourths  of  the  whole  jjopulation  and  pay  the  great  bulk 
of  the  taxes.  The  remainder  is  held  by  the  landlords  and  the 
crown,  and  is  cultivated  largely  by  peasants  under  what  are 
termed  bondage  contracts,  contracts  of  service  for  advances 
made.  But  twenty-one  per  cent  of  the  whole  area  of  European 
Russia  is  cultivated.  Serfdom  did  not  extend  over  all  Russia. 
Siberia,  the  country  about  the  White  Sea  and  the  Cossacks  olf 
the  south  rejected  it.  The  Tartars  of  the  east,  the  Rouman- 
ians, the  German  colonists  and  the  Finns,  as  a  rule  maintained 
their  lil)erties.     P>y  the  emancipation  the  serfs  were  not  re- 


4o6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

lieved  entirely  of  the  burdens  of  their  landlords.  The  peas- 
ants, in  lieu  of  their  former  services  to  the  landlords,  were 
bound  to  pay  an  annual  tribute,  varying  in  amount  in  differ- 
ent places  according  to  circumstances.  By  a  subsequent  ar- 
rangement the  state  undertook  to  aid  the  peasants  to  redeem 
and  discharge  the  perpetual  rents  for  a  lump  sum,  loaned  to 
them  by  the  state,  thus  releasing  the  peasants  from  all  obliga- 
tion to  the  landlords  and  transferring  the  obligation  to  the 
state. 

The  village  system  since  the  redemption  is  still  maintained 
as  before,  and  the  lands  still  belong  to  the  mir  as  a  unit. 
Cities  in  Russia  are  of  far  less  importance  than  in  any  other 
ecpially  great  country.  The  people  are  divided  into  two  main 
classes,  the  merchants,  who  have  a  certain  amount  of  capital 
and  pay  license  dues  in  return  for  priviliges  accorded  them, 
and  the  mechanics  and  others  of  the  humbler  sort.  The  mer- 
chants are  divided  into  three  guilds ;  the  first  pay  five  hundred 
roubles  a  year  and  have  the  privilege  o(f  trading  throughout 
the  empire  and  abroad ;  members  of  the  second  are  limited 
to  home  trade,  and  the  third  are  the  small  traders.  Each 
guild  has  its  board  and  elects  its  head.  Prior  to  the  emanci- 
pation merchants  were  prohibited  from  owning  inhabited 
lands,  i.e.  estates  with  serfs.  This  restricted  their  holdings 
to  city  property.    The  restriction  is  now  removed. 

A  peculiarity  of  Russian  society  is  the  scarcity  of  profes- 
sional men.  The  medical  profession  languished  mainly  from 
want  of  schools.  The  legal  profession  had  no  standing,  pro- 
cedure in  the  courts  being  secret  and  conducted  by  officers  of 
the  government.  The  reforms  of  Alexander  II  make  the 
courts  open  to  all  classes  equally,  require  trials  to  be  public 
and  allow  parties  to  be  heard  in  person  and  by  attorney.  This 
has  given  life  to  the  profession  O/f  the  lawyer.  At  so  low  an 
ebb  was  legal  training,  that  it  is  said  that  a  considerable  num- 
ber of  the  judges  of  the  courts  of  general  jurisdiction  had  no 
previous  training  in  the  law.  The  leading  peculiarities  of 
Russian  society  are  its  division  into  two  main  classes,  the 
peasants  and  the  office-holding  and  land-owning  nobility,  and 
the  meagre  numbers  and  small  importance  of  what  in  some 


RUSSIA  407 

other  countries  make  up  what  is  termed  the  middle  class,  but 
which  ill  fact  is  morally  and  intellectually  the  highest.  Russia 
is  also  peculiar  in  that  the  number  of  its  landless  and  depend- 
ent class  is  smaller  than  in  any  other  great  country. 

The  educational  system  is  yet  in  its  infancy  and  illiteracy  is 
the  rule  all  over  Russia.  This  is  not  due  to  any  disinclination 
to  learn  or  want  of  capacity  in  the  children.  No  where  are 
more  apt  students  to  be  found.  At  the  great  cities  there  are 
universities,  which  in  many  respects  rank  well  with  the  best 
schools  of  Europe,  but  are  afflicted  with  excessive  govern- 
mental supervision.  They  are  revolutionary  hot  beds,  and 
rigid  police  supervision  of  the  students  is  regarded  as  indis- 
pensable. The  natural  spirit  of  the  students  induces  them  to 
revolt  against  this  interiference,  and  riots  are  not  infrequent. 
The  government  has  the  impossible  task  of  giving  a  liberal 
education  to  the  youths  and  still  retaining  respect  for  despot- 
ism. Scattered  through  the  provinces  are  high  schools,  at 
which  instruction  in  the  dead  languages  is  given  along  with 
other  branches.  Primary  schools  are  yet  more  numerous,  but 
hardly  one-tenth  of  the  children  are  as  yet  afforded  even  the 
rudiments  of  education.  Only  about  one-ninetieth  of  the 
revenues  raised  from  the  people  is  applied  to  schools.  The 
army,  navy  and  public  officials  absorb  the  lion's  share.  To  the 
means  furnished  the  schools  by  the  government  must  be  ad- 
ded about  as  much  more  raised  by  the  zemstvos,  besides  that 
paid  for  private  instruction.  The  people  everywhere  show 
great  interest  in  obtaining  the  benefit  of  schools,  and  the  peas- 
ants especially  exhibit  much  liberality  in  taxing  themselves  to 
establish  them. 

Railroads  and  telegraphs  are  mainly  in  the  hands  of  the 
government,  and  a  system  of  banks  is  also  maintained.  Manu- 
facturing industries  are  still  in  a  very  I)ackward  state. 

In  religion  most  of  the  Russians  adhere  to  the  Greek  Church. 
The  clergy,  who  are  dependent  on  the  Czar  for  their  positions, 
have  for  centuries  been  the  mainstay  of  his  authority.  Over 
an  illiterate  and  devout  people  they  exercise  a  most  powerful 
influence,  and  the  duty  of  submission  to  the  Czar's  authority 
is  constantly  inculcated  by  every  priest  in  the  land.     Perliapp 


4o8  EVOLUTTON  OF  GOVERNMENTS  ANiD  LAWS 

no  other  people  in  the  world  are  so  thoroughly  loyal  to  their 
chief  ruler  as  they,  and  this  is  largely  due  to  the  inlluence  of 
the  clergy. 

In  its  governmental  system  Russia  seeks  to  administer  the 
affairs  of  its  vast  empire  from  a  single  head.  Its  territory  is 
not  divided  into  either  tributary  or  self-governing  dependen- 
cies, but  is  a  compact  and  largely  homogeneous  state.  The 
central  power  connects  itself  directly  with  each  part  down  to 
the  peasant  village.  It  allows  and  in  fact  derives  great  ad- 
vantage from  the  democratic  mirs,  which  in  effect  reduce  the 
number  of  units  with  which  it  has  to  deal  from  that  of  the 
individuals  to  that  of  the  mirs  or  volosts.  Local  selif-govern- 
ment  over  limited  areas  aids  autocracy.  The  force  of  the 
volost,  made  up  of  unlettered  peasants,  is  insufficient  to  en- 
danger or  interfere  with  the  central  authority.  The  recently 
established  aemstvos,  if  permitted  to  consult  and  combine  with 
one  another,  might  check  arbitrary  power,  but  such  combina- 
tions are  jealously  prohibited,  and  the  ^oiistzfo  is  not  sustained 
or  invigorated  by  that  inherited  strength,  which  the  primitive 
village  has  brought  down  from  antiquity.  Its  powers  are 
more  strictly  limited  and  its  functions  not  generally 
comprehended. 

The  system  of  laws  which  prevails  exhibits  peculiarities 
due  to  the  manner  of  its  development.  Althcnigh  it  caimot 
be  said  that  all  its  laws  are  an  indigenous  growth,  and  that 
none  have  been  borrowed  from  other  nations,  the  system  is 
distinctly  I'iussian.  It  is  in  main  a  product  of  local  customs, 
peculiar  to  Russia,  which  furnish  the  laws  of  the  peasant 
communities,  and  of  edicts  of  the  Czars.  There  never  has 
been  an  adoption  of  the  legal  system  of  any  other  state  or 
people.  h>oni  time  to  time  the  Czar  lias  issued  his  ukase, 
covering"  any  subject  he  had  in  mind  in  his  own  way,  without 
regard  to  anything  whicli  his  predecessors  had  done.  Russian 
Czars  have  frequently  been  bold  innovators.  As  a  reformer 
the  Czar  has  ideal  conditions  for  action.  He  makes  the  law 
as  he  wills.  The  emperors  have  for  many  generations  realized 
the  necessity  of  governing  in  accordance  with  declared  prin- 
ciples, but  thev  have  been  unwilling  to  part  with  their  judicial 


RUSSIA  409 

power,  or  speaking  more  accurately,  with  the  power  to  set 
aside  and  disregard  their  own  rules  wherever  deemed  ex- 
pedient. The  laws  therefore  have  been  only  for  the  guidance 
of  subordinates,  and  then  only  so  far  as  seemed  consistent 
with  the  policy  of  the  bureaucracy.  There  have  been  various 
compilations  of  the  laws  of  the  empire,  beginning  with  that  o'f 
laroslav  in  the  tenth  century  and  ending  with  that  of  Speran- 
sky  in  the  reign  of  Nicholas  I.  This  last  compilation  fills 
forty-five  quarto  volumes,  containing  the  laws  of  the  empire 
arranged  in  chronological  order.  These  laws  have  been  con- 
densed into  a  code,  Svod,  classified  by  subjects,  and  included 
in  fifteen  volumes,  containing  over  sixty  thousand  articles  in 
fifteen  hundred  chapters.  This  vast  mass  of  legislation  would 
seem  to  be  sufficient  to  afford  fixed  rules  for  most  cases,  but  as 
3  matter  of  fact  there  is  much  contradiction  and  inconsistency 
in  the  ukases  of  the  various  Czars,  issued  at  different  times 
and  acting  under  varying  impulses.  To  the  subject  these  laws 
have  afforded  no  safe  rule  of  conduct  or  protection  oif  prop- 
erty rights,  because  of  the  system  of  administration.  Trials 
in  the  courts  of  both  civil  and  criminal  causes  until  1864  were 
secret,  the  evidence  being  taken  down  in  writing.  A  system 
of  appeals  from  one  court  to  another  has  long  prevailed,  but 
this  adds  little  to  the  suitor's  security  and  causes  much  delay 
and  expense.  Lawyers  were  not  advocates  but  merely  inter- 
cessors with  the  judges.  That  best  of  all  guarantees  for  the 
integrity  of  judges,  trials  in  the  presence  of  the  public  and 
of  the  professional  lawyers,  whose  business  it  is  to  extract  the 
truth  from  parties  and  witnesses  and  apply  the  law  to  the 
facts,  was  not  given  till  the  rdforms  of  Alexander  II.  While 
long  steps  in  the  right  direction  have  been  made  in  the  refor- 
mation of  tbc  judiciary,  there  is  still  much  to  be  desired  in 
the  way  of  independence  and  fearlessness  on  the  l>ench.  This 
may  be  said  with  truth  of  every  other  land,  as  well  as  Russia. 
There  it  is  the  Ministers  whose  influence  is  regarded  as  most 
baneful,  elsewhere  it  is  mainly  the  rich  and  powerful.  The 
principal  complaints  urged  against  the  Russian  system  are 
for  arbitrarv  arrests  and  punishments:  lack  of  security  for  the 
citizen  against  the  malice  of  police  officers;  cruelty  and  bru- 


410  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tality  in  the  manner  of  executing  sentences;  insecurity  in  the 
home  against  searches,  seizures  and  arrests,  and  poHce  inter- 
ference with  the  private  hfc  df  the  citizen.  To  this  is  added 
a  charge  of  general  and  all  pervading  corruption  among 
public  officials,  courts,  police  officers,  governors  and  even  min- 
isters. Just  how^  far  this  sweeping  charge  is  justified  by  the 
facts  it  is  impossible  to  state,  but  the  want  of  that  effective 
check,  accountability  to  the  people  for  whom  and  on  whom 
authority  is  exercised,  renders  it  probably  true  that  the  charge 
is  well  sustained.  The  Czar  and  the  ministers  seek  to  keep 
informed  of  all  that  is  doing  through  the  secret  police  and 
spies,  but  of  the  integrity  of  these  they  have  no  better  guar- 
anty than  of  the  officials  they  are  sent  to  watch.  The  funda- 
mental difficulty,  which  no  autocratic  government  has  ever 
permanently  overcome,  is  that  the  num'ber  of  matters  to  be 
investigated  is  too  great  and  the  scene  of  action  is  too  far 
away  for  any  set  of  men  at  the  capital  to  be  able  to  learn  the 
facts  and  act  intelligently  on  them.  To  conduct  the  affairs  of 
so  vast  an  empire  safely  and  intelligently  much  must  be  re- 
ferred to  the  people  of  each  district,  who  alone  can  be  relied 
on  to  bring  to  account  their  local  oppressors  or  incompetent 
public  servants.  With  every  step  forward  in  civilization  an 
accession  of  mental  and  moral  force  in  the  governing  head  is 
required,  which  no  one  man  or  small  clique  of  men  can  pos- 
sibly furnish.  The  knowledge,  virtue  and  power  of  the  great 
multitude  must  be  drawn  from  in  order  to  move  'forward 
safely  and  rapidly.  The  purest  and  best  part  of  the  admin- 
istration of  Russian  affairs  will  generally  be  found  to  be  that 
under  the  immediate  supervision  of  the  Czar  himself  and  that 
directly  managed  by  the  people  in  their  local  concerns. 

On  March  15.  191 7.  the  Czar  abdicated  and  the  Romanof 
dynasty,  under  which  the  1)oundaries  of  the  empire  had  been 
extended  over  all  eastern  Europe  and  northern  Asia,  came  to 
an  end  after  three  centuries  of  power.  As  the  war  progressed 
and  the  fundamental  issue  between  the  parties  became  more 
clearly  defined  the  incongruity  in  the  alliance  of  autocratic 
Russia  with  democratic  France,  Great  Britain  and  Italv.  for 


RUSSIA  411 

the  overthrow  of  miHtarism  in  Germany  became  more  and 
more  apparent.  The  Russian  autocracy  was  in  theory  a  more 
absohite  military  despotism  than  that  of  the  Kaiser.  The  war 
demonstrated  its  lack  of  efficiency.  The  ideals  of  the  ministry 
and  their  subalterns  were  essentially  the  same  as  those  of  the 
military  nobility  of  Prussia.  But  at  the  base  of  the  govern- 
mental system  were  the  democratic  inirs,  the  artels  and  other 
associations  of  the  proletariat,  filled  with  longings  for  liberty 
in  an  unalloyed  democracy.  A  little  progress  had  been  made 
in  the  construction  of  a  representative  government  through  the 
::;ci}isfz'os  and  the  Duma,  but  the  vast  illiterate  multitude  knew 
almost  nothing  concerning  the  principles  of  organization  which 
are  essential  to  the  security,  welfare  and  efficiency  of  a  great 
democratic  nation.  The  number  of  educated  people  of  mod- 
erate means  was  relatively  much  less  than  in  the  western  na- 
tions. The  proletariat  were  distrustful  of  the  bourgeoisie  as 
well  as  of  the  ruling  classes.  The  war  stimulated  the  activities 
and  increased  the  importance  of  the  ccfiist-zfos,  through  which 
a  large  part  of  the  supplies  of  food,  clothing  and  munitions 
were  furnished  the  soldiers.  The  inefficiency  of  the  ministry 
became  more  and  more  apparent  as  the  strain  of  the  struggle 
increased.  The  Germans  had  been  seeking  a  separate  peace 
with  Russia,  and  Boris  StiJrmer,  who  was  both  Premier  and 
Minister  of  Foreign  Affairs,  was  charged  with  German  affilia- 
tions. The  hostility  of  the  Duma  caused  him  to  resign  on 
Nov^ember  24th,  1916,  and  Mr.  Alexander  Trepofif  was  ap- 
pointed as  his  successor.  On  December  15th  the  Duma  unan- 
imously voted  to  entertain  no  peace  proposals.  The  Czarina 
was  of  German  birth  and  regarded  as  strongly  pro-German  in 
her  sympathies.  She  fell  under  the  influence  of  the  monkish 
impostor.,  Rasputin,  to  whose  supernatural  aid  she  attributed 
the  improved  health  of  her  son.  The  murder  of  Rasputin  on 
January  29,  19 17,  was  followed  by  the  dismissal  of  Trepoff 
and  the  other  liberal  ministers,  who  showed  no  disposition  to 
punish  the  slayers  of  Rasputin,  and  the  appointment  of  Prince 
Golitzin,  a  reactionary,  opposed  to  all  the  reforms  demandcfl 
by  the  liberals,  as  Premier,  and  a  cabinet  in  accord  with  him. 
The   Duma   continued   to   manifest  a   clisposition   to   exercise 


412  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

legislative  functions,  and  in  March  the  Czar  ordered  it  dis- 
solved. The  Duma  refused  to  be  dissolved,  procured  the  ab- 
dication of  the  Czar,  took  charge  of  the  government  and 
named  a  council  of  ministers  to  conduct  it.  The"  people  both 
in  and  out  of  the  army  were  ready  for  the  revolution,  and 
there  was  surprisingly  little  resistance  to  the  Provisional  Gov- 
ernment. The  workingmen's  organizations  and  most  of  the 
soldiers  supported  the  Duma,  and  the  complete  overthrow  of 
the  autocracy  was  accomplished  with  very  little  bloodshed. 
The  Provisional  (jovernment  was  recognized  by  the  United 
States  on  March  22  and  by  Great  Britain,  P>ance  and  Italy 
on  March  23. 

But  while  there  was  such  an  overwhelming  majority  of 
the  people  in  favor  of  the  overthrow  of  the  old  government, 
there  was  no  such  majority  in  favor  of  the  new.  The  Council 
of  Workmen's  and  Soldiers'  Delegates,  though  not  representa- 
tive of  the  whole  nation,  was  the  most  potent  organization 
existing  among  the  multitude.  It  at  first  gave  its  support  to 
the  new  Ministry,  but  the  ideals  of  the  great  multitude  were 
(apposed  to  a  ruling  force,  and  soldiers  and  workmen  sought 
an  immediate  realization  of  their  hopes  and  purposes  through 
excessive  wages  and  a  division  of  the  land.  In  the  first  days 
of  the  revolution  a  considerable  number  of  army  officers  were 
killed  by  the  men  under  them,  and  discipline  was  destroyed. 
The  leaders  labored  earnestly  to  construct  a  Ca1)inct  that  would 
command  the  confidence  of  all  classes  and  made  frequent 
changes  with  that  end  in  \iew.  Alexander  F.  Kerensky,  a 
socialist  who  believed  in  law  and  order  and  the  \-igorous  pros- 
ecution of  the  war,  came  rapidly  to  the  front  and  appeared 
to  have  the  confidence  of  all  classes.  In  the  last  days  of  July 
he  succeeded  Premier  Lvoff,  and  a  new  government  was 
formed  with  a  Cabinet  of  ten  Ministers,  five  of  whom  were 
.'ii-ocialists.  Kerensky  retained  the  portfolios  of  War  and  Ma- 
rine. The  Council  of  Soldiers',  Workmen's  and  Peasants' 
Delegates  of  all  Russia  passed  by  a  large  majority  resolutions 
supporting  this  Provisional  Government  and  according  it  un- 
limited powers  for  reestablishing  the  organization  and  dis- 
cipline of  the  Army  and  issued  a  vigorous  proclamation  urging 


RUSSIA  413 

all  to  support  it.  Confidence  in  the  new  government  was 
short-lived.  Discipline  and  efficiency  could  not  be  at  once  re- 
stored to  an  army  poorly  supplied  with  food,  munitions  and 
equipment.  The  Germans  took  Riga  and  overran  Oesel  Island. 
The  Bolsheviki,  extreme  socialists,  under  the  leadership  of 
Nikolai  Lenin  and  Leon  Trotzky  took  advantage  of  the  de- 
pression resulting  from  the  defeat  of  the  army  to  propagate 
their  doctrines  and  press  their  demands  for  an  immediate  peace. 
On  November  7,  1917,  the  Bolsheviki,  backed  by  the  gar- 
rison of  Petrograd.  overthrew  the  Provisional  Government. 
The  Military  Revolutionary  Committee  of  the  Petrograd 
Council  of  Workmen's  and  Soldiers'  Delegates  announced  as 
their  program; 

"i.    The  offer  of  an  immediate  democratic  peace. 

"2.    The  immediate  handing  over  of  large  proprietary  lands 

to  the  peasants. 
"3.   The   transmission   of   all   authority   to   the   Council   of 

Soldiers'  and  Workmen's  Delegates. 
"4.    The  honest  convocation  of  a  Constituent  Assembly." 

The  German  government  promptly  took  advantage  of  this 
announcement  and  proposed  peace  negotiations.  Hostilities 
were  suspended  on  December  7,  and  an  armistice  announced 
on  December  16,  between  the  Central  Powers  and  Russia. 

Disintegration  of  the  great  Russian  Empire  set  in  and  pro- 
gressed rapidly.  Finland,  which  had  always  been  restless 
under  the  Russian  yoke,  asserted  its  independence,  and  the 
Ukranian  People's  Republic  concluded  a  separate  peace  on 
February  9,  1918.  The  Bolshevik  Government,  dissatisfied 
with  the  terms  imposed  by  the  Central  Powers,  announced  its 
refusal  to  sign  the  treaty  and  its  withdrawal  from  the  war. 
By  the  same  document  the  demobilization  of  the  Russian  troops 
on  all  fronts  was  ordered.  But  the  Germans  would  not  accept 
this  declaration  as  an  end  of  the  war.  Their  armies  continued 
to  advance  and  the  Bolsheviki  yielded  and  signed  the  treaty 
which  in  effect  transfers  Poland,  Courtland,  Esthonia  and 
Lithuania  to  Germany  and  recognizes  the  Ukraine  as  a  separate 
nation.     Since  the  conclusion  of  this  treaty  there  have  been 


414  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

several  attempts  at  counter  revolution  and  the  establishment 
of  local  governments  differently  constituted.  No  organization 
is  recognized  as  having  authority  over  all  or  nearly  all  the 
territory  formerly  included  in  the  Russian  Empire.  Under  the 
leadership  of  Lenin  and  Trotzky  the  Soviet  Government  has 
been  established  and  with  the  support  of  the  Red  Army  has 
maintained  rulership  over  most  of  Russia.  A  police  and  spy 
.system  similar  in  its  workings  to  the  old  system  of  the  Czars 
has  been  established  and  has  been  quite  as  ruthless  in  its  meth- 
ods as  the  old  one.  It  has  been  used  for  the  circulation  of 
propaganda  designed  to  create  sentiment  in  favor  of  th.e  Soviet 
sy.stem.  The  struggle  for  mastery  between  the  leaders  of  count- 
er revolutions  and  the  Soviet  leaders  has  ceased  for  a  time,  if 
not  permanently,  with  the  Soviet  organization  still  in  control. 
Fear  of  a  return  to  the  autocracy  and  jealousy  of  foreign  in- 
terference have  been  skilfully  turned  to  their  advantage  by  the 
Soviet  leaders.  The  stratification  of  society  has  also  l)een  fa\'- 
orable  to  the  dominance  of  their  form  of  organization.  The 
Czar  and  his  family  were  ruthlessly  murdered  on  July  17, 
1918,  at  the  Ural  town  of  Ekaterinburg,  to  which  they  had 
been  removed,  and  most  of  those  who  constituted  the  ruling 
class  under  him  were  either  killed  or  driven  out  of  the  country 
soon  after  the  overthrow  of  the  Provisional  Government. 
The  bourgeoisie,  who  in  more  advanced  nations  constitute  the 
ruling  force,  were  too  few  in  numbers  and  wanting  in  or- 
ganization to  be  able  to  materially  influence  political  affairs. 
The  peasants,  though  greatly  outnumbering  all  other  social 
elements,  were  too  ignorant  and  w^anting  in  capacity  for  or- 
ganization to  assume  mastery  of  the  nation.  The  organizations 
of  the  laboring  men  in  the  great  cities  and  of  the  soldiers  were 
far  more  numerous  and  complete  than  those  of  any  other  social 
elements.  Lenin  and  his  co-workers  made  skillful  use  of  them 
and  established  their  leadership.  They  have  undertaken  to 
work  out  a  complete  socialistic  organization  of  the  state. 
They  have  been  quite  as  bitterly  opposed  to  all  capitalistic 
domination  as  to  the  political  rulership  of  the  Czar.  They 
have  sought  to  put  an  end  to  all  capitalism,  all  exploitation  of 
labor  either  through  money,  credit,  ownership  of  land,   fac- 


RUSSIA  415 

tories,  railroads  or  other  means  of  production  or  distribution 
of  wealth.  Their  method  has  been  the  simple  and  direct  one 
of  governmental  seizure  of  all  forms  of  property.  The  results 
have  been  temporary  advantage  to  those  who  have  done  the 
seizing,  followed  by  paralysis  of  the  industries  resulting  from 
lack  of  competent  management  and  the  supplies  that  are  essen- 
tial in  all  industrial  oj>erations.  Seizure  of  the  crops  of  the 
peasants  for  the  use  of  the  Soviets  and  their  army  has  dis- 
couraged the  production  of  food.  In  a  vain  attempt  to  supply 
the  place  of  the  products  resulting  from  useful  activities  the 
government  has  resorted  to  the  familiar  expedient  of  paper 
money,  issued  in  unlimited  quantities,  with  the  inevitable  re- 
sult that  it  is  now  almost  worthless.  The  denial  of  all  ad- 
vantage to  capital  and  capitalists  destroys  the  credit  system. 
The  theory  that  the  laborer  is  entitled  to  the  whole  product 
of  his  labor  has  a  charm  that  appeals  to  the  mere  wage  earner. 
He  often  fails  to  fairly  comprehend  the  necessity  for  saving 
and  applying  a  part  of  the  proceeds  of  the  business  to  the  con- 
struction and  repairing  of  buildings  and  machinery,  the  pur- 
chase of  raw  materials,  fuel  and  supplies,  or  of  establishing 
credit  to  tide  over  adverse  business  conditions  or  unexpected 
losses.  Until  educated  to  a  full  comprehension  of  these  needs 
the  laborer's  desire  for  his  full  share  of  the  gross  product  of 
the  industry  dominates.  The  distrust  of  capitalistic  owners, 
who  have  heretofore  not  merely  accumulated  the  needed  funds 
for  the  transaction  of  their  business,  but  have  lived  in  com- 
parative luxury,  has  caused  deep  seated  antagonism  to  them 
and  their  system.  The  money  lender,  who  lives  on  usury  and 
without  work,  appears  yet  more  objectionable.  All  who  lend 
surplus  means  are  rated  as  usurers,  even  though  they  in  fact 
do  more  than  their  share  of  useful  work.  Actuated  by  such 
considerations,  the  leaders  have  attempted  the  complete  na- 
tionalization of  all  industries  and  pro|ierty.  Reliable  data  are 
not  yet  available  for  a  detailed  statement  of  the  steps  taken  to 
this  end  or  of  their  effects,  but  there  can  be  no  doubt  that 
many  of  the  manufacturing  ])lants  have  gone  to  decay  and 
wholly  or  partially  ceased  to  give  employment  to  the  workers. 
Peasants  whose  lands  and  crops  have  been  seized  have  curtailed 


4i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  production  of  crops,  aiul  want  and  famine  have  followed. 
Instead  of  ])eing  the  i^ranary  from  which  industrial  luu'ope  is 
U'i\,  Russia  is  short  of  food  for  its  own  people.  The  prevailing 
famine  is  due  in  large  part  to  the  great  drouth  of  1921,  but 
with  normal  planting  and  cultivation  and  normal  facilities  for 
transportation  and  distribution  the  want  and  suffering  could 
have  been  greatly  reduced.  With  railroad  tracks,  engines  and 
cars  out  of  repair  and  no  funds  available  to  restore  them  it  is 
impossible  to  move  supplies  from  distant  places  of  production 
to  the  famine  stricken  districts.  With  the  repudiation  of  the 
national  debt  national  credit  is  destroyed,  and  with  the  aboli- 
tion of  private  property  the  basis  of  private  credit  is  taken 
away.  Without  security  or  interest  there  is  no  inducement 
for  those  who  have  money,  food  or  clothing  to  furnish  it  to  a 
borrower  or  a  purchaser.  Present  inability  to  pay  cannot  claim 
the  aid  of  credit  till  a  return  of  prosperity,  unless  the  borrower 
recognizes  his  obligation  to  pay  and  is  given  a  chance  to  accu- 
mulate the  means  to  do  so.  The  farmer  or  craftsman  cannot 
provide  for  the  future  needs  of  himself  and  others,  when  the 
government  seizes  his  product  for  the  use  of  those  exercising 
authority  and  the  army  that  maintains  them  in  power.  The 
socialism  of  the  Soviets  has  been  followed  by  results  in  marked 
contrast  to  that  of  the  Tncas  of  Peru,  which  caused  the  ac- 
cumulation of  such  ample  supplies  of  all  necessaries.  The 
fallacy  of  the  present  Russian  system  is  that  instead  of  being 
designed  to  increase  the  sum  total  of  useful  things  for  dis- 
tribution among  the  ])eople,  it  diminishes  production  by  taking 
away  the  incentives  to  private  effort,  destroys  credit  and  con- 
fidence and  discourages  i)rivate  initiative. 

To  repair  the  w^aste  of  war  and  the  wrecked  industries  of 
the  country  the  leaders  are  now  seeking  to  restore  foreign 
trade  and  to  procure  foreign  loans.  Of  the  leading"  nations 
Germany  is  the  only  one  that  has  fully  recognized  the  Soviet 
Government.  Great  Britain  has  given  it  a  partial  recognition 
bv  a  trade  agreement  signed  in  London  on  March  16,  1921. 
The  parties  to  this  treaty  are  the  Government  of  the  United 
Kingdom  and  the  "Russian  Socialist  Federal  Soviet  Republic, 
hereinafter  referred  to  as  the  Russian   Soviet  Government." 


RUSSIA  417 

Article  XI  contains  the  following  recognition  of  property 
rights : 

"XI. — -Merchandise,  the  produce  or  manufacture  of  one  coun- 
try imported  into  the  other  in  pursuance  of  this  agreement, 
shall  not  be  subjected  therein  to  compulsory  requisition  on  the 
part  of  the  Government  or  of  any  local  authority." 

Perhaps  the  most  important  part  of  the  whole  treaty  is  that 
contained  in  the  part  appended  after  the  signatures  to  the  body 
of  it,  reading  as  follows: 

"At  the  moment  of  signature  of  the  preceding  Trade  Agree- 
ment both  parties  declare  that  all  claims  of  either  party  or  of 
its  nationals  against  the  other  party  in  respect  of  property  or 
rights  or  in  respect  of  obligations  incurred  1)y  the  existing  or 
former  Governments  of  either  country  shall  ])e  ecpiitably  dealt 
with  in  the  formal  general  Peace  Treaty  referred  to  in  the 
preamble. 

In  the  mean  time,  and  without  prejudice  to  the  generality  of 
the  above  stipulation,  the  Russian  Soviet  Government  declares 
that  it  recognizes  in  principle  that  it  is  liable  to  pay  compen- 
sation to  private  persons  who  have  supplied  goods  or  services 
to  Russia  for  which  they  have  not  been  paid.  The  detailed 
mode  of  discharging  this  liability  shall  be  regulated  by  the 
Treaty  referred  to  in  the  preamble."^ 

These  provisions  are  very  guarded  recognitions  of  rights 
to  private  property  and  obligations  to  pay  debts. 

At  the  Genoa  Conference  the  Soviet  Government  was  again 
confronted  with  the  inconsistency  of  its  position  in  refusing  to 
recognize  the  validity  of  prior  debts  and  obligations  when  ask- 
ing a  loan  of  money  from  creditors  holding  past  obligations 
which  it  repudiated. 

Authorities 
Rambaud  :     History  of  Russia. 
Beaulieu  :     The  empire  of  the  Tzars. 
Stepniak :  '  Russia  under  the  Tzars. 
Stepniak  :     The  Russian  Peasantry. 
Encyclopaedia  P)ritannica. 

^Current    History   XIV    No.   2.     257. 


CHAPTER  XVII 


Italy^ 


Were  it  not  for  the  fact  that  the  city  of  Rome  is  inchidecl 
within  its  boundaries  and  is  now  its  capital,  there  Vk^ould  ap- 
pear Httle  connection  between  modern  Italy  and  ancient  Rome. 
The  boundaries  of  the  present  kingdom,  though  clearly  marked 
by  nature,  were  never  oif  importance  to  Rome.  Her  policy 
and  system  both  under  the  republic  and  empire  applied  equally 
to  more  distant  lands.  As  a  political  unit  Italy  has  no  history 
till  within  the  last  half  century.  After  the  fall  of  the  western 
empire  came  the  Goths  and  established  a  kingdom  over  the 
jieninsula,  nominally  under  commission  from  the  eastern  Em- 
peror, but  really  with  little  recognition  of  his  authority.  Then 
followed  the  effort  of  Justinian  to  reestablish  the  Byzantine 
rule  and  the  appointment  of  an  exarch  at  Ravenna  to  rule  as 
his  representative.  Then  came  the  invasion  of  the  Lombards, 
also  a  German  race.  They  came  not  merely  as  an  invading 
armv  but  as  a  moving  nation  with  wives,  children  and  all 
their  chattels,  occupied  the  valley  of  the  Po  and  moved  slowly 
down  along  the  interior  of  the  peninsula,  leaving  Venice, 
Ravenna,  Rome  and  other  portions  untouched.  From  their 
advent  till  modern  times  the  sovereignty  over  Italy  was  di- 
\'ided.  The  temporal  power  of  the  popes,  like  that  of  feudal 
lords  in  later  times,  had  if  or  its  foundation  a  recognized  owner- 
ship of  land.  By  various  means  the  Roman  pontiff  accpiired 
large  possessions  in  and  about  Rome,  over  which  he  assumed 
civil  authority.  Under  Gregory  I  (590  to  604)  these  posses- 
sions were  largely  increased.  In  754  the  Frankish  king  Pepin, 
having  taken  up  the  quarrel  of  the  Pope  with  the  Lombards 
and  defeated  them,  handed  over  to  Pope  Stephen  III  a  con- 

'  For  Mediaeval  events  in  see  ch.  X'V.  For  a  full  account  of  the  legisla- 
tion of  the  Goths,  Burgundians,  Lombards  and  Franks  see  Calisse's  History 
of  Italian  Law,  Continental  Legal  History  Series,  Vol.   i. 

418 


ITALY  419 

siderable  district  including  Ravenna  and  Pentapolis,  "to  be 
held  and  enjoyed  by  the  pontiffs  of  the  Apostolic  See  forever." 
This  was  followed  in  800  by  the  alliance  of  Pope  Leo  III 
with  Charlemagne,  by  which  the  latter  received  the  imperial 
crown  from  the  former  and  in  return  recognized  the  spiritual 
supremacy  of  the  Pope  throughout  Christendom.  The  south- 
ern portion  of  the  peninsula  did  not  submit  to  Charlemagne, 
but  recognized  the  ultimate  sovereignty  of  the  emperor  at 
Constantinople.  After  the  Frankish  empire  fell  into  decay 
there  followed  a  period  oif  discord  and  lack  of  central  author- 
ity, though  there  was  a  titular  king  of  Italy,  who  waged  war 
on  the  local  nobility  to  enforce  his  authority  with  varying 
success.  In  961  the  German  emperor  Otto  entered  Lombardy 
and  in  the  next  year  was  crowned  emperor  by  the  Pope  at 
Rome.  The  dominion  of  Otto  and  succeeding  German  em- 
perors was  never  fully  recognized  throughout  Italy,  and  wars 
frequently  occurred  in  efforts  to  enforce  their  authority.  Then 
came  the  war  of  the  investitures,  which  was  a  struggle  for 
actual  power  between  the  Pope  and  the  Emperor.  Following 
this  conflict,  though  it  may  not  be  safe  to  say  as  a  result  of  it, 
came  the  age  of  free  cities.  The  feudal  system  was  intro- 
duced into  Italy  and  was  enforced  in  rural  communities,  but 
the  towns  adopted  popular  systems  and  asserted  their  inde- 
pendence. The  history  oif  these  petty  states  affords  a  most 
valuable  lesson  in  the  subject  of  our  study.  Their  develop- 
ment was  along  similar  lines  with  substantially  similar  results. 
At  first  a  comparatively  few  people  joined  together  for  mutual 
aid  and  protection.  The  system  of  municipal  government  at 
first  adopted  was  popular  in  character  and  design  to  protect 
the  more  humble  citizens  against  aggression.  The  tyrant  most 
dreaded  was  usually  a  feudal  lord,  against  whom  the  burghers 
united.  Joining  for  defense  against  the  exactions  of  rapacious 
nobles,  they  were  disposed  to  accord  justice  to  each  other. 
This  necessarily  implies  consideration  for  the  rights  of  the 
humble.  With  superior  moral  principles  as  the  basis  of  their 
institutions  they  naturally  drew  strength  and  gained  numl)ers 
from  among  those  who  could  escape  from  the  dominions  of 
oi)prcssivc  nobles.     With  ifreedom  of  action  accorded  to  each 


420  EVOLUTION  OF  GOVERNMENTS  ANlD  LAWS 

citizen  and  protection  to  all  these  little  republics  exhibited  a 
degree  of  activity  and  force  far  exceeding  that  to  be  found 
among  people  ruled  by  petty  despots,  and  the  development  of 
industries  and  trade  went  forward  at  a  remarkable  pace. 
Though  the  free  cities  succeeded  in  combining  against  com- 
mon enemies  at  times,  they  soon  manifested  jealousies  and 
hostility  toward  each  other.  Like  the  ancient  Greeks  they 
lacked  capacity,  for  combining  for  common  ends,  and  went  to 
war  instead.  In  their  several  internal  organizations  demo- 
cratic S}stems  were  gradually  converted  into  oligarchical  ones 
and  these  generally,  perhaps  universally,  divided  into  warring- 
factions,  which  v\^ere  only  subdued  by  a  despot,  usually  from 
without  the  particular  city.  Thus  it  will  be  observed  that 
these  republics  began  with  relatively  good  principles  and  ex- 
ceptional prosperity  and  ended  in  disaster  and  tyranny.  The 
question  naturally  forces  itself  on  us,  if  the  early  system  is 
the  better,  why  is  it  invariably  ifollowed  by  that  which  is 
worse  ?  Why  does  the  good  perish  and  the  bad  take  its  place  ? 
The  answer  must  be  that  the  early  system  contained  the 
germs  of  its  own  destruction,  and  that  these  germs  grew  and 
gained  strength  at  the  expense  and  ultimately  to  the  exclusion 
of  the  salutary  principles  which  were  dominant  in  the  early 
organization. 

Everywhere  it  will  be  found  that  the  power  of  a  ruling 
oligarchy  has  developed  in  connection  with  the  theory  of  the 
transmission  of  property  by  inheritance.  Probably  the  reason 
wdiy  the  effects  of  laws  of  inheritance  in  developing  a  distinct 
class  are  not  readily  perceived  is,  that  estates  pass  from  father 
to  son,  one  at  a  time,  so  that  there  is  no  time  when  there  is  a 
noticeable  change  in  the  personnel  of  the  oligarchy.  Where 
all  start  poor  and  on  a  substantially  equal  footing,  difference 
in  capacity,  strength,  prudence  and  other  circumstances,  re- 
sults in  the  accumulation  by  some  of  more  property  than  the 
rest.  Perhaps  no  social  or  political  distinction  results  from 
this  difference.  The  feeling  of  fellowship  between  the  richest 
and  poorest  may  continue  through  life.  But  at  the  death  of 
the  wealthy  one  the  estate  passes  by  inheritance  to  a  son  who 
has  (lone  nothing  to  merit  it.     He  takes  it  with  a  feeling  of 


ITALY  431 

pride  and  superiority  over  the  sons  of  the  poor.  If  possessed 
of  the  requisite  quaHties  the  inheritance  he  has  received  adds 
to  his  power  to  acquire  wealth,  and  he  increases  his  holdings. 
His  riches  give  him  distinction  and  naturally  mark  him  as  a 
public  man.  He  is  placed  in  authority  more  or  less  of  the 
time.  At  his  death  an  increased  estate  passes  to  his  heir.  By 
this  time  the  bond  of  sympathy  between  rich  and  poor  is 
broken.  The  son,  whose  ancestors  for  two  or  more  genera- 
tions have  enjoyed  wealth  and  exercised  power,  believes  him- 
self to  be  of  a  superior  class.  He  associates  only  with  those 
of  similar  fortune  and  looks  with  conternpt  on  the  poor. 
Starting  with  an  utterly  'false  estimate  of  his  own  deserts,  he 
regards  the  possession  of  property  through  a  law  which  is 
merely  a  human  regulation,  as  due  to  the  special  grace  of  a 
higher  power  and  himself  marked  out  as  superior  to  the  multi- 
tude. Discarding  utterly  the  doctrine  that  individual  merit 
and  desert  rest  solely  on  individual  conduct  and  effort,  he 
makes  a  virtue  of  idleness  and  takes  the  fruits  of  the  labors 
of  others  without  suspecting  that  justice  would  deny  him  any 
share  of  that  for  which  he  returns  nothing  in  exchange. 
Naturally  the  heirs  of  wealth  associate  mainly  with  those  of 
their  class,  and  by  intermarriages  wealth  is  consolidated  and 
the  interests  of  families  are  combined.  The  history  of  all 
the  Italian  cities  shows  that  through  exactly  this  process  an 
oligarchy  was  established,  based  on  possessions.  Then  came 
jealousies,  rivalries  and  factions.  While  the  poor  may  at 
times  raise  riots  when  bread  is  scarce,  the  idle  rich  spend 
their  time  in  plotting  to  gain  still  greater  prominence  and 
ascendency.  Having  plenty  they  covet  still  more  and  incite 
the  poor,  who  are  dependent  on  them,  to  fight  in  their  interests. 
The  landed  aristocrats  of  Italy,  like  those  of  other  parts  of 
Europe  in  feudal  times,  based  their  rights  on  grants  from  the 
king  or  emperor.  His  right  to  make  such  grants  generally 
had  its  fotmdation  in  military  power  and  conquest.  The  shift- 
ing fortunes  of  the  rulers  of  different  states  placed  it  in  the 
power  of  some  one  of  them  at  some  time  to  regard  each  tract 
of  land  as  conquered  territory  fo  be  given  to  his  favorite  fol- 
lowers, aufl  as  to  many  i>arts  there  were  many  changes  of 
sovereignty. 


422  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Though  the  soil  of  Italy  ]>ccanic  a  bone  of  contention  among 
foreign  and  domestic  princes  and  for  I4cxi  years  was  without 
national  unity,  its  people  still  held  a  commanding  position  in 
many  respects.  The  church  passed  from  being  an  organiza- 
tion to  propagate  religious  faith  and  moral  principles  to  one 
whose  main  aim  was  power  and  mastery.  The  wea[X)ns  of 
the  church  were  not  merely  interdicts  and  excommunications, 
but  the  Popes  did  not  hesitate  to  equip  armies  and  fight  bloody 
battles.  Through  the  theory  of  land  titles  the  churches  and 
monastic  societies  became  possessed  of  a  large  proportion  of 
all  the  best  lands  in  Europe.  To  the  revenue  derived  from 
these  was  added  a  great  variety  of  contributions  from  all 
classes  of  people  for  supposed  services,  in  the  collection  of 
which  the  priesthood  became  very  expert.  Schemes  to  gather 
money  were  never  wanting,  and  the  sale  of  indulgences  and 
the  confiscations  of  the  Inquisition  show  to  what  depths  of 
iniquity  the  professed  heads  of  the  Christian  religion  could 
descend.  Most  of  the  people  of  Italy  have  been  poor,  igno- 
rant and  sorely  oppressed  during  most  of  the  time  since  the 
fall  of  the  western  empire,  yet  there  have  always  been  bright 
spots  somewhere.  The  ancient  spirit  of  liberty  and  law  has 
always  lived  in  the  breasts  of  some  of  the  sons  of  the  penin- 
sula, and  from  time  to  time  has  found  expression  in  the  in- 
stitutions of  her  cities.  The  learning  and  arts  of  the  Greeks 
and  Romans  have  never  been  entirely  lost.  Ravenna,  Venice, 
Milan,  Genoa,  Naples,  Florence,  Pisa,  Verona,  Mantua,  Bo- 
logna, Parma,  Pavia,  Siena  and  scores  of  other  cities,  includ- 
ing old  Rome  itself,  have  at  times  exhibited  regard  ifor  justice 
and  the  blessings  of  peaceful  industry  and  beneficial  enter- 
prise. Not  their  wealth,  but  their  inability  to  make  wise  and 
just  disposition  and  distribution  of  it  and  their  jealousy  of 
rivals  have  proved  their  ruin.  The  church  lost  its  hold  on  the 
consciences  of  men  when  its  main  aims  became  the  gathering 
of  wealth  and  the  increase  of  power.  Though  the  Italian 
cities  severally  were  able  to  accomplish  brilliant  results,  the 
ancient  capacity  for  organization,  which  cliaracterizcd  Rome, 
was  lacking.  Confederacies  like  that  of  the  Lombard  cities 
might  successfully  resist  a  foreign  aggressor  for  a  time,  but 


ITALY  433 

no  system  was  developed  which  effectually  provided  either  for 
continued  cooperation  against  outside  /foes  or  for  the  determi- 
nation of  controversies  between  the  different  cities  and  their 
citizens  arising  from  conflicting  interests.  Faction  soon  be- 
came strife,  and  the  utterly  senseless  quarrels  of  Guelphs  and 
Ghibellines  covered  the  streets  of  the  cities  with  the  blood  of 
rival  parties  and  armed  city  against  city  and  state  against 
state.  Conflicting  claims  of  Pope  and  Emperor  to  power  ad- 
ded to  the  turmoil  and  intensified  the  hatred  of  factions.  Fac- 
tional strife  as  usual  resulted  in  the  evolution  of  tyrants,  from 
whom  the  people  hoi)ed  at  least  for  order.  Then  came  the  age 
of  mercenary  soldiers  hired  by  petty  tyrants  to  fight  their 
wars,  of  intrigue  and  deception,  ifor  which  the  statesmen  of 
the  Italian  states  gained  unenviable  notoriety. 

The  fifteenth  century  found  Italy  divided  into  five  states, 
the  kingdom  of  Naples,  the  duchy  of  Milan,  the  Popes  domin- 
ions, and  the  republics  of  Venice  and  Florence.  The  last 
named  cities  held  high  rank  in  commerce  and  domestic  indus- 
tries. This  was  a  period  of  power  for  the  Pope  and  of  Vene- 
tian dominance  on  the  sea.  Then  followed  that  struggle  for 
dominion  in  Italy  between  the  kings  of  Austria,  France  and 
Spain,  with  its  varying  combinations,  always  resulting  in  the 
domination  of  foreign  rulers  over  more  or  less  of  the  country, 
which  lasted  till  recent  times.  Local  dukes  and  princes  were 
for  the  most  part  dependents  on  the  rulers  of  one  or  another  of 
these  great  kingdoms. 

Italy  became  the  field  of  contest  between  Republican  France 
and  despotic  Austria  in  1796,  and  as  a  result  of  Napoleon's 
successes  temporary  republics  were  established.  Later  Napo- 
leon established  his  authority  and  ruled  through  his  representa- 
tives, but  the  congress  of  Vienna  in  181 5  undid  all  his  work 
and  again  divided  Italy  into  petty  states. 

Victor  Emanuel,  whose  ancestors  had  enjoyed  more  or  less 
power  in  Savoy,  Burgundy  and  Lombardy  from  the  tenth 
centurv,  was  accorded  the  kingdom  of  Sardinia,  including 
Piedmont  and  Genoa.  Austria  held  Vcm'cc  and  INTilan,  the 
Pope  the  states  of  the  church,  and  the  P>ourbon  prince  Ferdi- 
nand Naples  and  Sicily.     Austrian  influence  dominated,  and 


424  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

despotism  in  all  iis  oelionsness  returned.  In  nSjo  revolts  oc- 
curred, which  were  soon  suppressed  by  the  combined  forces  of 
Austria,  Great  Britain  and  Bourbon  France.  Trials  of  leaders 
and  persons  obnoxious  to  the  rulers  by  courts  organized  to 
convict  followed,  and  the  hand  of  despotism  put  many  patri- 
ots to  death  as  traitors.  In  1830,  following  the  uprising  in 
Paris,  there  were  outbreaks  in  some  of  the  cities,  which  were 
soon  suppressed.  The  desire  for  Italian  unity  and  freedom 
spread  not  less  rapidly  for  the  iron  rule  of  the  princes.  The 
advocates  of  a  republic,  though  forced  to  act  in  secrecy,  con- 
tinued their  agitation  and  contrived  to  hold  meetings  ostensi- 
l)ly  for  other  purposes.  The  scientific  congress  professing  to 
be  devoted  to  scientific  research  was  in  fact  a  cover  for  re- 
publican gatherings.  On  the  accession  of  Pius  IX  to  the 
papacy  he  proclaimed  a  general  amnesty  for  political  offenses 
and  sided  with  the  liberals.  In  1847  constitutions  were 
granted  in  Rome,  Piedmont  and  Tuscany.  Austria  and  Naples 
refused  to  make  concessions,  and  in  1848  a  demonstration  at 
Milan  by  the  liberals  was  made  the  occasion  of  the  slaughter 
of  many  citizens  in  the  streets.  Uprisings  at  Naples  forced 
the  allowance  oif  a  constitution  in  1848.  In  response  to  the 
])opular  demand  the  king  of  Sardinia  made  war  for  the  libera- 
tion of  the  Austrian  provinces,  but  without  success.  Opposi- 
tion to  the  war  by  the  Pope  caused  an  uprising  at  Rome, 
which  resulted  in  the  temporary  establishment  of  a  republic. 
The  Pope  was  resorted  to  power  by  the  French  in  1849.  The 
dukes  of  Parma,  Modena  and  Tuscany,  who  had  been  scared 
from  their  dominions,  returned  under  Austrian  protection, 
and  the  old  order  of  things  was  restored.  In  1859  France 
came  to  the  aid  of  Sardinia,  and  as  a  result  of  a  brief  cam- 
paign Sardinia  gained  Tuscany,  Modena  and  Prama,  but  at  the 
price  of  the  concession  to  France  of  Savoy  and  Nice.  This 
was  soon  followed  by  a  revolution  in  the  south  of  Italy.  Un- 
der the  lead  of  Garibaldi  Sicily  was  soon  overrun,  and  cross- 
ing to  the  main  land  Naples  was  taken.  In  t86i  this  kingdom 
voted  to  be  annexed  to  that  oif  Sardinia,  and  Victor  Emanuel 
was  proclaimed  King  of  Italy.  As  a  result  of  the  Austro- 
Prussian  war,  in  which  the  Italians  took  part  with  the  Prus- 


ITALY  425 

sians,  Venice  was  restored  to  Italy.  The  French  revohition  of 
1870  resulted  in  the  withdrawal  of  French  support  from  the 
Pope,  and  on  the  twentieth  of  September  1870  Victor  Emanuel 
entered  Rome  and  made  it  his  capital,  the  Pope  retaining  the 
Vatican  with  its  dependencies.  In  these  recent  wars  for  the 
liberation  of  Italy  the  republicans  have  been  the  popular  lead- 
ers, and  republican  enthusiasm  has  given  the  energy  which  has 
resulted  in  the  establishment  of  the  present  limited  monarchy. 
The  constitution  is  essentially  that  granted  by  Charles  Albert. 
The  crown  is  hereditary  in  the  male  line  of  the  house  of  Savoy. 
Legislative  power  is  in  the  king  and  parliament,  and  the  king- 
on  his  accession  is  bound  to  take  an  oath  in  the  presence  of 
both  chambers,  that  he  will  ol>ey  the  constitution.  His  style 
is  "by  God's  grace  and  through  the  will  of  the  nation  King  of 
Italy"  :  thus  recognizing  the  concurrence  of  divine  and  popu- 
lar will.  The  executive  powers  of  government  are  exercised 
through  a  ministry  responsible  to  parliament,  composed  of 
nine  members  namely.  Foreign  Affairs ;  Interior ;  Public  In- 
struction; Finance;  War;  Marine;  Grace;  Justice  and  Wor- 
ship ;  Public  Works ;  and  Agriculture,  Industry  and  Commerce  : 
The  Senate  consists  of  the  princes  of  the  royal  family  and  an 
undefined  number  of  persons  forty  years  of  age  or  over,  ap- 
pointed b}'  the  king  from  the  archbishops,  bishops,  ministers, 
high  officials,  admirals,  generals  and  other  persons  of  wealth 
or  distinctiotj.  There  must  be  an  election  of  members  of  the 
chamber  of  deputies  at  least  once  in  five  years.  All  males 
twenty-one  years  of  age  or  over,  who  pay  taxes  to  the  amount 
of  twenty  lire  and  can  read  and  write,  are  allowed  to  vote. 
There  are  508  meml^ers  of  the  chamber  of  deputies.  In  1865 
the  whole  kingdom  was  divided  into  sixty-nine  provinces  and 
eight  thousand  five  hundred  and  forty-five  communes,  but 
many  changes  have  been  subsequently  made  in  the  arrange- 
mejit.  In  each  province  there  is  a  prefect  appointed  Ijy  the 
king  and  a  council  chosen  by  the  same  electors,  which  elects  its 
own  president  and  has  supervision  of  provincial  affairs.  In 
each  commune  there  is  also  a  council  having  charge  of  the  local 
affairs  with  power  of  hxral  taxation.  The  Italirm  government 
is  still  esscntiallv  aristocratic.  l)nt  the  difficulties  with  whicli 


426  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

Italian  statesmen  have  been  confronted  were  very  great.  No 
other  country  inchided  so  large  a  percentage  of  beggars  and 
idle  poor.  Brigandage  and  lawlessness,  extreme  ignorance, 
religious  bigotry  and  general  incapacity  for  public  affairs, 
prevailed  in  many  localities.  Though  Italian  cities  arc  still 
seats  of  learning  and  culture  and  the  homes  of  men  of  a  very 
high  order  of  intelligence,  morals  and  education,  Rome, 
Naples  and  other  cities  contain  great  masses  of  depraved  men 
and  women,  from  whom  little  that  is  good  need  be  hoped  ifor 
at  once. 

In  the  matter  of  education  though  the  government  exhibits 
most  commendable  solicitude,  Italy  is  still  far  behind  most 
European  states.  Each  commune  is  bound  by  law  to  afford 
primary  education  and  attendance  is  made  compulsory,  but 
there  are  still  very  many  places  where  schools  are  not  main- 
tained for  all,  and  many  children  who  do  not  attend.  There 
are  seventeen  national  universities  and  numerous  special 
schools  of  high  order.  The  judicial  system  has  at  its  head 
five  courts  of  cassation,  at  Rome,  Turin,  Florence,  Naples  and 
Palermo.  Below  these  are  twenty-three  courts  of  appeals  in 
the  principal  cities.  The  number  of  courts  of  assize  varies  at 
the  pleasure  of  the  king.  Trials  of  criminal  cases  are  by 
jury,  and  the  death  penalty  is  no  longer  inflicted.  There  are 
one  hundred  and  sixty-two  civil  and  correctional  tribunals, 
and  1813  praetors  having  jurisdiction  in  civil  causes  involving 
less  than  1500  lire  and  also  in  criminal  cases.  It  is  a  part  of 
their  duty  to  effect  compromises  of  litigation  without  trial. 
There  are  also  special  judges,  styled  conciliatori,  to  aid  in 
bringing  about  settlements,  and  about  one-fourth  the  causes 
are  said  to  l>e  disposed  of  in  this  manner.  The  principles  df 
the  Roman  law  still  afford  the  basis  of  the  modern  system  of 
Ttalv,  though  changed  in  many  particulars. 


CHAPTER  XVIII 


Spain  and  Portugal 


Of  the  habits  and  organization  of  the  people  of  Spain  at  the 
time  it  first  became  known  to  the  Greeks  and  Phoenicians  or 
later  to  the  Romans  we  know  very  little.  They  are  mentioned 
as  barbarous  tribes.  The  Phoenicians  were  the  first  to  make 
settlements  and  establish  trading  ports  on  the  coast.  Gades, 
Tartessus  and  Tarraco  are  said  to  have  been  flourishing  towns 
as  early  as  the  seventh  century  B.  C.  Carthage,  itself  a  Phoeni- 
cian colony,  had  acquired  a  kind  of  dominion  over  the  penin- 
sula by  the  time  of  the  first  Punic  war,  264  B.C.,  but  had  not 
succeeded  in  establishing  a  settled  government  over  the  interior 
tribes.  Considerable  progress  was  made  by  Hamilcar  and 
Hasdrubal  in  extending  their  rule  over  the  peninsula  prior  to 
the  second  Punic  war,  but,  beyond  the  facts  that  they  were 
backed  by  strong  armies  and  at  the  same  time  encouraged 
matrimonial  unions  between  their  followers  and  the  natives, 
little  can  be  told  of  the  system  by  which  they  governed.  Dur- 
ing this  war  the  Romans  invaded  Spain,  and  by  205  B.C.  they 
had  taken  the  mastery  of  the  country  out  of  the  hands  of  the 
Carthaginians.  The  process  oif  planting  Roman  colonies  and 
introducing  the  Roman  system  met  with  much  resistance  from 
the  interior  tribes,  and  it  was  not  till  the  time  of  Augustus 
that  the  whole  peninsula  to  the  Pyrenees  became  pacified. 
The  Roman  system  then  became  general,  and  under  it  Spain 
enjoyed  a  marked  degree  of  prosperity  and  exemption  from 
war  for  nearly  three  hundred  years,  though  sorely  oppressed 
by  the  tax  gatherers. 

Under  Augustus  Spain  was  divided  into  three  provinces, 
Roetica  in  the  southeast  with  Corduba  for  its  capital,  Lusi- 
tania,  corresponding  to  modern  Portugal,  of  which  F.merita 
Augusta  was  the  capital,  and  Tarraconensis,  covering  all  the 
remainder,  with  Tarraco   for  its  cajMtal.     Of  these  Boetica, 

427 


428  EVOT.UTION  OF  GOVERNMENTS  ANID  LAWS 

the  most  unlcrly  and  thoroughly  Ri)iiianizcd,  was  a  senate 
province,  and  the  other  two  were  imperial  provinces,  of  which 
the  Emperor  named  the  governors.  The  whole  peninsula  was 
divided  into  fourteen  convcntus,  each  made  up  of  a  combi- 
nation of  communities  within  the  district,  and  having  a  chief 
town  at  which  justice  was  administered.  In  the  time  of  Ves- 
pasian 360  towns  are  enumerated,  including  those  having  the 
full  Roman  franchise,  those  having  the  inferior  franchise,  the 
colonia,  and  the  tributary  towns,  on  the  inferior  classes  of 
which  he  conferred  Latin  rights.  Spain  became  one  of  the 
most  thoroughly  Latinized  of  all  the  Roman  provinces,  and 
all  the  characteristics  of  Roman  civilization  were  developed 
throughout  the  peninsula.  The  vine  and  the  olive  were  suc- 
cessfully planted,  and  agriculture  llcnirished.  The  rich  mines 
were  opened,  and  the  working  of  metals  and  weaving  of 
fabrics  were  industriously  followed.  Latin  became  the  lan- 
guage of  the  country,  and  among  its  sons  the  two  Senecas, 
Lucan,  Florus  and  Martial,  were  types  of  philosophers  and 
poets  of  high  order.  In  politics  Spain  can  boast  of  having 
produced  a  Trajan  and  a  Hadrian,  who,  during  forty  of  the 
best  years  the  Roman  empire  ever  knew,  directed  its  affairs. 
The  first  great  shock  came  in  256,  when  the  Franks  passed 
the  Pyrenees  and  spread  destruction  over  the  peninsula.  Tar- 
ragona was  sacked  and  almost  destroyed,  and  for  twelve  years 
the  rich  provinces  were  desolated  and  scourged  by  the  bar- 
barous invaders.  After  this  storm  another  era  of  peace  and 
prosperity  followed  till  409.  Contemporaneous  with  the  sack- 
ing of  Rome  by  Alaric,  a  tide  of  Suevi,  Alani  and  Vandals 
swept  over  the  country  and  desolated  it.  About  414  a  Visi- 
gothic  horde  under  Ataulphus  and  as  an  ally  of  Rome  entered 
the  country.  Soon  afterward  Ataulphus  was  murdered  and 
his  successor  Walia  made  a  treaty  with  the  Emperor  Honorius, 
by  which  he  nominally  acknowledged  the  imperial  sovereignty, 
and  thereafter  proceeded  to  subdue  the  Suevi,  Alani  and  Van- 
dals. Although  he  was  able  to  extend  his  authority  over  most 
of  the  peninsula,  he  was  not  al)le  to  thoroughly  subdue  these 
tribes,  and  for  many  years  there  was  warfare  between  the 
Romanized   Goths  and   the   German   tribes.      About  429   the 


SPAIN  AND  PORTUGAL  423 

Vandals,  led  by  their  king  Genseric,  passed  into  Africa  and 
established  their  dominion  there.  Under  Euric,  466  to  485, 
the  Gothic  state  was  extended  over  a  large  part  of  Gaul,  and 
the  seat  of  government  established  at  Bordeaux.  Euric  was  a 
legislator  as  well  as  a  warrior,  and  he  caused  to  be  collected 
and  embodied  into  a  written  code  the  "Customs  oif  the  Goths." 
His  successor  Alaric  II  caused  the  work  to  be  revised  and  en- 
larged by  civil  lawyers,  incorporating  many  of  the  principles 
of  Roman  civil  and  ecclesiastical  law,  Roman  sovereignty 
gradually  gave  way  even  in  name  to  the  actual  rule  of  the 
Goths.  The  Gothic  dominion  soon  yielded  north  of  the  Pyre- 
nees to  that  of  the  Franks,  but  continued  in  Spain  with  many 
wars  and  frequent  domestic  upheavals  till  the  advent  of  the 
Saracens  in  711.  Under  the  Goths  the  people  were  ruled  by 
an  elective  monarch  and  an  hereditary  aristocracy,  represent- 
ing the  temporal  power,  and  by  the  church,  which  soon  gained 
a  predominant  influence  in  the  state.  Bigotry,  persecution  and 
the  Inquisition,  exhibited  their  barbarities,  and  by  their  side 
the  Christian  doctrine  of  the  equality  of  all  men  before  the 
law  found  place  in  their  code.  The  barbarisms  of  valuing 
men's  lives  according  to  rank,  of  judicial  combat  and  trial  by 
ordeal,  were  unknown.  The  succession  to  the  Gothic  throne 
was  often  contested,  and  many  occupants  of  it  ifell  by  the 
hands  of  assassins.  Here  as  elsewhere  the  dangers  of  wearing 
a  crown  failed  to  deter  men  from  seeking  the  coveted  prize. 
The  Goths  were  Arians,  though  the  major  part  of  the  Spanish 
population  adhered  to  the  orthodox  faith.  In  the  latter  part 
of  the  sixth  century  King  Ricared  adopted  the  Catholic  faith 
and  proceeded  vigorously  and  successfully  with  the  conversion 
of  his  subjects.  From  that  time  forth  Spain  Ijecame  the  most 
reliable  of.  Catholic  states.  Religious  zeal,  whetted  possibly 
bv  the  known  wealth  of  the  Jews,  who  dwelt  in  Sjjuin  in  great 
nuinl)ers,  caused  their  cruel  and  l)l(i()(ly  persecution  and  a 
decree  for  the  expulsion  of  the  last  of  ihcm  from  the  country 
at  the  time  when  the  Mohammedan  power  was  spreading  over 
northern  Africa. 

The  Jews  inxited  the  Saracens  to  invade  .Spain,  but  it  can 
hardly  be  said  that  their  encouragement  was  the  cause  of  the 


4.30  EVOLUTION  OF  GOVERNMENTS  AN)D  LAWS 

invasion.  In  711  Tarik  witli  5,000  men  landed  at  Gibraltar. 
This  force  was  inadecjuate  to  the  task  before  it,  and  Tarik 
wisely  awaited  reinforcements  before  liazarding  a  decisive 
battle.  Having  received  large  accessions  to  his  force  both 
from  iVfrica  and  from  disaffected  subjects  of  Spain,  he 
marched  out  and  destroyed  the  army  of  King  Roderic  in  a 
long  and  hard  fought  battle,  in  which  the,  tide  was  turned  by 
the  treachery  of  a  part  of  Roderic's  army.  Tarik  at  once  took 
advantage  of  his  success  and  quickly  overran  the  country.  A 
state  which  it  had  taken  the  Romans  two  centuries  to  sulxlue 
was  overrun  and  reduced  by  the  Saracens  in  a  few  months. 
The  rapid  success  of  the  Mohammedan  armies  in  Spain,  as 
elsewhere  in  the  early  days  of  religious  zeal,  was  largely  due 
to  the  sui>erior  treatment  by  them  of  conquered  people.  The 
alternative  of  the  "sword,  the  tribute  or  the  Koran"  offered 
to  those  capaible  of  adapting  their  beliefs  to  their  material 
interests  an  easy  escape  from  all  oppression,  and  even  when  the 
tribute  was  imposed,  it  was  a  more  moderate  burden  than 
many  of  the  Christian  rulers  placed  on  their  subjects.  An 
example  of  this  is  given  in  the  terms  of  the  capitulation  of 
Theodomir  to  Abdelazis  after  a  stubborn  resistance. 

"In  the  name  of  the  most  merciful  God,  Abdelazis  makes 
peace  on  these  conditions,  that  Theodomir,  shall  not  be  dis- 
turbed in  his  principality,  nor  any  injury  be  offered  to  the 
life  or  property,  the  wives  and  children  the  religion  and  tem- 
ples of  the  Christians  .  .  .  that  he  shall  not  assist  nor  enter- 
tain the  enemies  of  the  Caliph,  but  shall  faithfully  communicate 
his  knowledge  of  their  hostile  designs,  that  himself  and  each 
of  the  Gothic  noibles  shall  annually  pay  one  piece  of  gold,  four 
measures  of  wheat,  as  many  of  barley,  with  a  certain  propor- 
tion of  honey,  oil  and  vinegar,  and  that  each  of  their  vassals 
shall  be  taxed  at  one  moiety  of  said  imposition."  This  was 
dated  in  the  ninety-fourth  year  of  the  Hegira. 

Not  content  with  the  possession  of  Spain,  the  Saracens 
passed  the  Pyrenees  and  overran  the  southern  part  of  Gaul, 
till  their  crusfhing  defeat  near  Tours  in  732  by  the  Franks 
under  Charles  Martel  put  a  definite  end  to  their  encroach- 
ments. Bv  759  they  abandoned  all  possessions  beyond  the 
Pvrenees. 


SPAIN   AND   PORTUGAL  431 

The  struggle  for  the  mastery  of  the  Alohammedan  world 
carried  on  in  the  east  resulted  in  the  overthrow  of  the  Omay- 
ads  and  the  destruction  of  the  members  of  the  royal  house- 
hold, except  Abd-al-Rahman,  who  effected  his  escape  to  Spain, 
where  he  was  warmly  welcomed  and  after  a  struggle  with  the 
Abbasid  adherents  succeeded  in  establishing  his  authority. 
Though  he  and  his  immediate  successors  assumed  the  modest 
title  of  eviir,  all  connection  with  the  Caliphate  was  in  fact 
severed  and  the  independence  of  Spain  was  maintained.  Un- 
der Abd-al-Rahman  a  struggle  for  mastery  against  opposing 
factions  aided  by  the  then  overshadowing  power  oif  the  Franks 
resulted  in  the  firm  establishment  of  his  power  and  a  long  era 
of  peace,  during  which  the  schools  of  Cordova  took  high 
rank,  and  the  study  of  mathematics,  astronomy,  medicine  and 
kindred  sciences  was  carried  to  the  highest  stage  anywhere 
attained  at  that  time.  His  descendants,  who  succeeded  him 
in  authority,  left  notable  monuments  of  the  wealth  produced 
by  the  skill  and  industry  of  the  people.  The  elegances  of 
eastern  civilization  and  the  public  utilities  of  roads,  bridges 
and  aqueducts,  so  characteristic  of  the  Roman  provinces,  were 
exhibited  in  city  and  country  in  forms  which  have  excited  the 
wonder  and  admiration  of  later  generations.  To  clearly  com- 
prehend what  is  sometimes  called  Moorish  civilization  it  must 
be  borne  in  mind  that  the  Mohammedans  merely  imposed  their 
own  authority  and  civilization  on  that  which  they  found  in 
Spain  on  their  arrival.  The  country  was  not  cleared  of  its 
ancient  inhabitants,  but  the  descendants  of  Phoenicians,  an- 
cient tribes,  Greeks,  Romans  and  Germanic  tribes  still  in- 
habited it  and  constituted  a  great  majority  of  the  population. 
In  agriculture  the  Roman  system  prevailed.  In  trade  Jews 
as  well  as  Romans  played  an  important  part.  In  the  arts  and 
sciences  the  rulers  wisely  encouraged  men  of  skill  and  learning 
from  all  parts  of  the  world  to  teach  as  well  as  to  labor  among 
their  people.  The  wealth  of  Spain  was  not  alone  in  gold, 
silver  and  the  works  of  laborers'  hands,  but  in  knowledge  as 
well,  and  Cordova  could  boast  of  its  library  of  600,000  vol- 
umes. The  prosperity  of  Spain  under  the  Omayad  dynasty 
illustrates  the  advantages  of  combiin'ng  different  civilizations 


432  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  a  proper  spirit.  The  Arabs  aiul  their  eastern  followers 
brought  with  them  the  arts  and  acquirements  of  the  east, 
which  were  added  to  the  Roman  civilization  which  preceded 
them.  Each  profited  from  the  peculiar  knowledge  of  the 
other,  and  each  was  stimulated  to  better  effort  in  useful  call- 
ings. But  the  Omayads  also  brought  with  them  the  seeds  oif 
the  destruction  of  their  empire.  Religious  bigotry,  polygamy, 
the  seclusit>n  of  women,  and  a  despotic  theory  of  government, 
worked  out  their  natural  results.  How  false  the  life  of  a 
typical  oriental  potentate  is  was  pathetically  expressed  by 
Abd-al-Rahman  III  who  ruled  from  912  to  961,  and  under 
whom  the  height  of  oriental  magnificence  was  maintained,  in 
a  memorial  in  which  he  said,  'T  have  now  reigned  above  fifty 
years  in  victory  or  peace,  beloved  by  my  subjects,  dreaded  by 
my  enemies,  and  respected  by  my  allies.  Riches  and  honors, 
power  and  pleasure  have  awaited  on  my  call,  nor  does  any 
earthly  blessing  appear  to  have  been  wanting  to  my  felicity. 
In  this  situation  I  have  diligently  numbered  the  days  of  pure 
and  genuine  happiness  which  have  fallen  to  my  lot;  they 
amount  to  fourteen.  O  man!  place  not  thy  confidence  in  this 
present  world."  Like  most  others  in  similar  station  he  failed 
to  comprehend  his  own  vices,  and  that  he  daily  transgressed 
the  laws  of  healthy  liife.  In  his  multitude  of  secluded  ignorant 
women  he  lacked  a  worthy  wife.  In  the  abundance  of  the 
fruits  of  the  labors  of  others  with  which  his  wants  were  sup- 
plied he  lost  the  healthy  relish  which  comes  from  useful  effort. 
In  the  exercise  of  despotic  power  over  the  lives  and  for- 
tunes of  others  he  was  not  disciplined  by  the  salutary  resis- 
tance which  the  freely  expressed  judgments  of  others  of  equal 
capacity  afford.  Most  of  all,  in  his  exalted  station  he  lacked 
the  sympathy  and  ^fellowship  of  others.  Of  the  brotherhood 
of  man  he  had  no  comprehension,  and  without  it  he  could  not 
realize  the  fatherhood  of  God. 

The  Mohammedans,  having  extended  their  dominion  over 
all  the  rich  provinces  of  Spain,  allowed  a  remnant  of  the 
Goths  to  take  refuge  in  the  mountainous  district  of  the  north- 
west. There  Pelayo  and  a  few  hardy  followers  preserved 
their  independence.     Christians  who  preferred  the  hard  life 


SPAIN  AND  PORTUGAL  433 

of  the  mountains  to  submission  to  Moslem  rule  in  more  genial 
districts,  joined  them,  and  thus  the  little  state  grew,  Alfonso, 
the  grandson  of  Pelayo,  extended  his  possessions  over  Galicia, 
and  his  son  fixed  his  capital  at  Oviedo.  Though  in  name 
Christians,  the  Visigoths  were  still  warriors  whose  principal 
employment  was  fighting  the  Mohammedans  and  each  other. 
Succession  to  the  throne  of  the  petty  state  was  oiften  the  oc- 
casion of  internal  discord,  and  the  record  of  assassinations 
and  fratricidal  wars  for  the  throne  is  similar  to  that  of  other 
kingdoms  of  that  time.  By  the  end  of  the  eighth  century  the 
kingdom  of  Oviedo  was  fairly  well  established  and  had  de- 
feated the  Moslems  in  several  great  battles. 

In  801  Charlemagne  extended  his  power  into  the  northeast 
of  Spain  and  established  a  mark  there,  over  which  the  Count 
of  Barcelona  ruled  as  representative  of  the  Frankish  Emperor. 
On  the  breaking  up  of  the  Empire  the  district  oif  Catalonia 
was  subject  to  frequent  transfers  of  sovereignty,  being  some- 
times under  a  local  ruler  and  at  others  subject  to  Gaulic  kings. 
About  900  Sancho  founded  the  kingdom  of  Navarre,  in  the 
district  in  which  the  ancient  Basques  had  taken  refuge  from 
the  invaders,  and  into  which  later  the  Suevi  withdrew  before 
the  Visigoths.  The  possessions  of  the  kings  of  Oviedo  were 
extended  into  Leon  and  Castile,  and  Sancho  the  great  of 
Navarre  extended  his  rule  over  Aragon.  The  German  custom 
of  dividing  kingdoms  as  a  patrimony  among  the  sons  pre- 
vailed, and  the  number  of  separate  states  depended  on  the 
number  of  sons  of  the  kings  and  the  success  of  one  in  taking 
the  share  of  another  by  fraud  or  force.  Thus  the  states  of 
Leon,  Castile  and  Aragon  were  formed.  The  mixed  popula- 
tion of  that  part  of  Spain  still  held  by  the  Arabs  and  the  con- 
flicting religious  beliefs  and  priestly  leaderships  were  a  source 
of  never  ending  trouble  to  the  rulers.  The  ninth  century  was 
a  period  of  disorder,  revolts  and  divided  authority  throughout 
the  Mohammedan  dominions,  but  much  the  same  conditions 
prevailed  among  the  Christians,  and  they  neglected  the  op- 
portunities which  the  times  afforded  for  the  expulsion  of  the 
.Mohammedans.  Abd-al-Rahman  III  ascended  the  throne  of 
Cordova  in  912  and  assumed  the  title  of  caliph.     Though  he 


434  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

did  not  succeed  in  establishini,^  his  sovereignty  over  the  Chris- 
tian  districts  in  the  northern  j)ortion  o'f  the  peninsula,  such 
was  his  success  in  encouraging  trade,  agriculture  and  manu- 
factures, that  the  country  enjoyed  unexampled  prosperity, 
and  his  revenues  were  sufficient  to  enable  him  to  maintain  an 
efficient  army  and  navy  and  to  annually  devote  vast  sums  to 
the  construction  of  public  works  and  buildings.  Of  all  the 
rulers  of  his  time  he  expended  most  of  the  money  taken  from 
his  subjects  by  taxations  for  their  education  and  for  aque- 
ducts, bridges,  roads  and  other  objects  really  beneficial  to 
them.  The  century  following  the  accession  of  Abd-al-Rah- 
man  III  to  the  throne  was  the  golden  age  of  the  Mohamme- 
dan dominion.  In  the  early  part  of  the  eleventh  century  the 
state  fell  into  disorder  and  civil  war,  and  in  103 1  by  the 
abdiction  of  Hisham  III  the  Omayad  dynasty,  which  had 
ruled  for  three  hundred  years,  came  to  an  end;  all  central 
authority  ceased  and  the  state  was  split  into  disorderly  ifrag- 
ments.  It  is  noteworthy  that  under  these  conditions  the  larg- 
est and  most  enlightened  cities,  the  great  seats  of  learning 
and  the  arts,  Cordova  and  Seville,  were  organized  as  republics. 
Following  the  fall  of  the  Omayad  dynasty  there  was  a 
period  of  great  discord  and  disorder  in  the  Moslem  districts, 
and  the  Christians  made  a  substantial  acquisition  of  territory. 
Among  Mohammedans  and  Christians  alike  most  of  the  civil 
strife  and  bloodshed  resulted  from  the  ambitions  of  the  no- 
bility and  the  descendants  of  princes.  The  thirst  for  power 
was  their  dominant  passion ;  wars  against  those  nearest  in 
blood  were  common,  and  treachery  and  assassination  of  broth- 
ers and  other  near  relatives  not  infrequent.  Those  whom  the 
people  followed  led  them  to  destruction.  Rulers  were  rarely 
actuated  by  any  motive  of  duty  or  public  service,  but  usually 
the  sole  object  oif  each  was  to  aggrandize  himself.  The  strug- 
gle between  the  followers  of  the  two  religions  was  not  less 
mercenary,  but  had  the  added  force  of  the  desire  for  priestly 
dominion  on  either  side,  and  the  warriors  were  stimulated  to 
risk  their  lives  under  promise  of  a  sure  reward  in  a  life  to 
come,  each  side  equally  confident  that  his  God  was  the  true 
God  and  that  he  fought  against  infidelity  and  falsehood. 


SPAIN  AND   PORTUGAL  43S 

In  the  time  of  Gregory  VII  the  Christians  of  Spain,  who 
had  been  somewhat  isolated,  adopted  the  ritual  of  the  Roman 
church  and  thenceforth  became  the  most  servile  of  its  fol- 
lowers. The  successes  oif  the  Christians  induced  the  cniir 
of  Seville,  then  the  most  powerful  of  the  Aloslem  princes,  to 
call  to  his  aid  Yussef,  the  king  of  the  Almoravids,  who  ruled 
over  a  vast  African  empire  with  Morocco  as  his  capital.  In 
response  the  king  came  with  a  strong  army,  and  Alfonso  VI 
of  Castile,  aided  by  the  King  of  Aragon  and  Count  of  Barce- 
lona, was. defeated  in  a  great  battle  at  Zallaka  in  1086.  Hav- 
ing been  recalled  to  Africa  by  the  death  of  his  son,  Yussef 
again  crossed  into  Spain  in  1090,  and  by  the  end  of  the  century 
all  the  Mohammedan  districts  oif  Spain  were  united  under  the 
rulership,  not  of  a  Spanish  prince,  but  of  the  King  of  Mo- 
rocco. Alfonso  VI  of  Castile  had  extended  his  power  to  such 
extent  as  to  assume  the  title  of  emi>eror  of  Spain,  but  before 
his  death  the  ]\Ioorish  power  curtailed  his  dominions.  There- 
after his  ambitious  daughter  Urraca  warred  with  her  husband 
Alfonso  of  Aragon,  and  as  the  result  Alfonso  ruled  Aragon 
and  Navarre  and  her  son  by  her  first  husband,  as  Alphonso 
\TI,  ruled  Castile,  Leon  and  Galicia.  In  this  age  of  crusades 
Spain  also  had  its  crusading  orders,  formed  to  fight  the  infi- 
dels, the  Calatrava  'founded  in  11 58,  that  of  St.  James  Compo- 
stella  in  1175  and  of  Alcantra  in  11 76.  In  the  kingdom  of 
Portugal,  which  grew  rapidly  in  the  twelfth  century,  there 
was  the  order  of  the  Evora.  In  Africa  Abd-al  Mu  min.  as 
leader  of  the  sect  of  Almohades,  overthrew  the  empire  of  the 
Almoravids  and  then  crossed  into  Spain.  The  Spanish  Almo- 
ravids called  to  their  aid  the  Christian  kings  of  Castile  and 
Aragon,  but  their  combined  forces  were  unable  to  cope  with 
the  victorious  Moors,  and  a  second  Moorish  rulership  was 
imposed  on  the  fairest  part  of  Spain.  The  feuds  and  dissen- 
sions in  the  Christian  states  gave  the  Moors  a  respite  from 
danger  ifrom  that  quarter,  but  a  revolt  of  the  Almoravids  in 
I  rgg  was  followed  hv  five  years  of  civil  strife,  and  soon  after- 
wards a  confederation  of  the  kings  of  Castile,  Aragon,  Leon, 
Navarre  and  Portugal,  was  effected,  mainly  through  the  in- 
fluence of  the  Pope  and  clergy,  and  on  July  16,  1212  in  the 


436  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

i^reat  battle  of  I. as  Navos  dc  Tolosa  the  Moors  sustained  a 
defeat  from  which  they  never  recovered.  The  old  Arab 
leaders  gave  way  in  the  district  still  held  by  the  Moslems  to 
the  Moorish  element,  which  thereafter  dominated.  In  1230 
Castile  and  Leon  were  united  under  Ferdinand  III,  who  ex- 
tended his  possessions  at  the  expense  of  the  Moslems,  captur- 
ing Cordova  and  Seville,  their  chief  cities,  and  others  oif  less 
importance  including  Cadiz.  During  the  same  period  the 
king  of  Aragon  extended  his  dominions  over  the  Moorish 
possessions  in  the  Balearic  Islands,  Valencia  and  Murcia,  so 
that  by  1266  the  Moors  were  confined  to  Granada.  By  this 
time  Portugal  had  acquired  substantially  the  same  territory 
it  now  possesses.  Though  reduced  within  such  narrow  terri- 
tories, the  Moorish  state,  which  had  been  reduced  to  a  homo- 
geneous population,  continued  without  material  change  in  its 
dimensions  for  more  than  two  centuries.  Its  history  is  one 
of  struggles  of  aspirants  for  power  with  each  other,  of  dis- 
sension and  civil  war,  with  occasional  collisions  with  the  Chris- 
tians, as  well  as  alliances  at  times. 

The  organization  of  society  in  the  states  of  Castile  and 
Aragon,  which  had  now  taken  most  prominent  place  in  Spain, 
was  similar  to  that  of  many  other  states  in  which  Germanic 
elements  were  dominant,  though  modified  somewhat  hy  re- 
ligious and  local  influences.  The  power  of  the  King  of  Cas- 
tile was  not  absolute.  The  cortes,  which  originally  was  a 
meeting  of  the  great  notoles  and  royal  household,  in  1162 
admitted  to  membership  deputies  from  the  cities,  who  at  first 
were  elected  bv  vote  df  all  free  citizens  and  afterward  by  the 
citv  magistrates.  The  national  assembly  of  the  cortes  was 
made  up  of  three  estates,  the  clergy,  nobles  and  representatives 
of  the  towns,  who  deliberated  separately  at  times  and  as  one 
bodv  at  others.  The  two  first  named  orders  were  exempt  from 
taxation.  The  feudal  system  took  root  in  Christian  Spain. 
The  nobles  exercised  judicial  powers  in  their  domains,  and  the 
bishops  and  higher  clergv  decided  causes  within  their  juris- 
diction in  accordance  with  the  laws  of  the  church.  The  nobles 
and  towns  exercised  the  right  of  forming  confederations  for 
the  protection  of  their  rights  by  force,  and  the  actual  admin- 


SPAIN  AND  PORTUGAL  437 

istration  of  government  was  mainly  local  under  the  clergy, 
nobles  and  town  authorities.  Grants  of  taxes  were  made  by 
the  cortes,  and  in  these  matters  at  times  only  the  third  order, 
who  represented  taxpayers,  were  allowed  to  participate. 

The  constitution  of  Aragon  was  still  more  restrictive  df 
the  kingly  power.  The  cortes  consisted  of  four  estates,  the 
great  nobles,  the  equestrian  order,  the  clergy  and  the  represen- 
tatives of  the  towns.  The  concurrence  of  all  was  essential  to 
the  passage  of  a  law,  and  they  exercised  the  right  of  super- 
vision over  the  administration  of  justice  and  the  expenditures 
of  public  moneys.  The  cortes  assembled  once  in  two  years, 
and  the  king  had  no  power  to  dissolve  it.  A  most  important 
officer  was  the  jtistiza,  appointed  by  the  king  from  the  eques- 
trian order.  He  could  be  removed  only  by  the  cortes,  to  whom 
alone  he  was  accountable  for  his  official  conduct.  His  person 
was  sacred,  and  he  was  the  supreme  interpreter  of  the  laws. 
He  could  call  the  king's  ministers  to  account  and  even  dis- 
miss them  from  office  for  misconduct.  Through  him  the  oath 
of  allegiance  was  expressed  on  behalf  of  the  barons  in  the 
following  form:  "We  who  are  each  of  us  as  good  as  you, 
and  who  are  altogether  more  powerful  than  you,  promise 
obedience  to  your  government  if  you  maintain  our  rights  and 
liberties,  but  not  otherwise."  The  cortes  was  not  only  the  law- 
making power  but  the  supreme  court  of  justice,  presided  over 
by  the  justisa.  The  office  gained  dignity  and  power  from  the 
appointment  of  men  of  exceptional  character  and  ability,  who 
exercised  a  marked  influence  on  the  affairs  of  the  state. 
Though  the  kingdom  of  Aragon  by  12 13  included  Catalonia 
and  Valencia,  each  of  these  provinces  had  its  separate  cortes 
and  was  governed  in  accordance  with  its  own  laws,  to  which 
the  people  jealously  adhered.  The  great  nobles,  in  accordance 
with  the  feudal  customs  of  the  times,  waged  private  wars  and 
demanded  their  shares  oif  all  conquests  made  by  the  state. 
The  constitution  of  the  cortes  in  Valencia  and  Catalonia  was 
essentially  the  same  as  in  Castile,  having  but  three  orders. 

Alfonso  X  of  Castile,  who  came  to  the  throne  in  1252, 
caused  a  code  of  laws  to  be  prepared,  based  on  the  civil  and 
canon  laws,  called  the  Sictc  Portidas,  but  the  adoption  nf  it 


.U8  F.VOT.UTTON  OF  GOVFRNMF.NTS  ANiD  TAWS 

by  the  cortes  was  not  effected  till  1348,  long  after  his  death. 
The  history  of  Castile  from  the  time  of  Alfonso  X  to  the 
union  with  Aragon  is  similar  in  its  leading  particulars  to  that 
of  other  European  states  where  the  feudal  system  prevailed. 
The  kings  and  great  nobles,  instead  of  preserving  the  general 
peace  by  their  wisdom  and  moderation,  were  turbulent,  con- 
tentious and  often  cruel.  Civil  war  often  followed  the  demise 
of  the  king  between  factions  supporting  opposing  claimants 
to  the  crown.  When  the  crown  was  not  an  available  jjretext 
for  war,  the  jealousies  and  rivalries  of  the  nobles  afforded 
other  pretexts  for  bloody  strife.  Neighboring  kingdoms  also 
came  in  for  their  shares  of  the  horrors  of  war,  and  during 
this  period  the  Christian  kings  caused  their  subjects  to  war 
with  each  other  quite  as  much  as  with  the  followers  of  the 
Prophet.  In  Spain  as  elsewhere  in  Europe  the  great  nobles 
imposed  a  check  on  the  power  of  the  kings,  which  at  times 
was  reduced  to  little  more  than  a  shadow.  The  towns  also 
preserved  some  measure  of  independence,  but  by  taking  the 
choice  of  delegates  to  the  cortes  from  the  mass  of  citizens 
and  vesting  it  in  the  magistrates  popular  influence  was  greatly 
restricted  and  the  opportunity  for  corrupt  influences  corre- 
spondingly increased.  Throughout  the  country  districts  of 
Castile  the  rule  of  the  nobles  was  despotic  and  the  condition 
of  the  common  people  that  of  serfs. 

In  Aragon  there  was  far  more  of  genuine  restriction  on 
arbitrary  power.  The  king  was  even  less  potent  than  in  Cas- 
tile, and  the  justi:::a  and  cortes  gave  the  townsmen  and  common 
people  some  measure  of  protection.  In  Catalonia  there  was 
much  genuine  republican  spirit.  Still  in  Aragon  the  nobles 
through  the  theory  of  ownership  of  the  land  retained  con- 
trol of  the  face  of  the  earth  and  dictated  to  the  multitude  the 
terms  on  which  they  might  live.  Aragon  had  its  written 
fundamental  law,  in  1283,  called  the  "General  Privilege," 
which  placed  limitations  on  the  powers  oif  the  king  and  con- 
tained substantial  provisions  to  secure  the  citizens  against 
arbitrary  power,  but  it  was  far  from  an  effectual  protection 
for  the  common  people.  In  1287  Alfonso  III  signed  what  is 
termed  the  "Privilege  of  Union,"  which  allowed  the  subjects 


SPAIN  AND   PORTUGAL  439 

to  take  up  arms  against  the  king  if  he  attempted  to  infringe 
their  Hberties.  Pedro  IV'  revoked  it  in  1348  after  putting 
down  a  serious  revolt.  While  doing  this  he  swore  to  respect 
the  personal  and  political  liberties  of  his  subjects.  Through 
the  claims  of  its  rulers  to  the  throne  of  Sicily,  Naples  and 
Sardinia,  Aragon  became  involved  in  foreign  politics  and 
wars,  and  while  the  King-  of  Aragon  for  a  time  ruled  also 
over  portions  of  Italy,  no  close  union  oif  the  detached  terri- 
tories was  effected,  but  each  retained  its  customs  and  laws. 
In  the  thirteenth  and  fourteenth  centuries  the  kingdom  of 
Navarre  was  more  closely  connected  with  France  than  with 
Spain.  Through  various  alliances  of  its  reigning  house  with 
other  rulers  there  were  frequent  changes  in  its  rulership  and 
territorial  connections.  In  the  fourteenth  century  by  the  mar- 
riage of  John  of  Gaunt  and  Edmund  of  York  to  daughters  of 
Pedro,  King  of  Castile,  claims  to  the  Castilian  throne  arose, 
which  brought  English  troops  into  the  peninsula,  and  alli- 
ances with  the  French  king  shifted  according  to  the  prevail- 
ing influences  of  the  time.  The  dreary  details  of  intrigues  and 
wars  in  the  interest  of  contending  princes  are  so  similar  in 
their  essence  that  it  seems  altogether  idle  to  ifollow  them. 
While  a  victorious  leader  may  gain  a  name  and  be  called  a 
hero,  the  net  result  of  the  strife  is  always  misery,  woe  and 
death  to  the  multitude. 

The  kingdom  of  Portugal  developed  from  the  fief  of  Terra 
Portucalensis,  which  Alfonso  VI  of  Castile  conferred  on 
Henrv  of  Burgundy  in  1094.  Its  independence  dates  from 
the  reign  of  Alfonso  Henriques,  renowned  as  a  crusader 
against  the  Moslems.  lie  reigned  from  1128  to  1 185.  In  his 
wars  he  received  some  aid  by  Templars  and  crusaders  from 
Germany,  Flanders  and  England.  Alifonso  II  (121 1  to  1223) 
summoned  the  first  Portuguese  parliament,  which  was  con- 
stituted of  high  church  officials  and  nobles.  The  feudal  sys- 
tem prevailed  there  at  that  time,  and  the  church  had  extended 
its  possessions  to  such  extent  as  to  induce  Alfonso  to  projxjse 
a  statute  of  mortmain,  i>rohil)iting  further  acquisition  of 
church  lands.  Under  Alfonso  III  the  boundaries  of  Portugal 
were   extended   to   include   substantially   its   present   territory. 


440  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

and  in  1254  he  summoned  a  cortes,  in  which  representatives 
of  the  cities  were  admitted  to  sit  with  the  clergy  and  nobles. 
While  Alfonso  received  from  the  city  representatives  the  aid 
he  anticipated  in  his  contests  with  the  clergy,  on  the  other 
hand  they  denounced  his  tampering  with  the  coinage  and 
compelled  recognition  of  their  control  over  the  levy  of  taxes. 
John  I  who  came  to  the  throne  by  the  choice  of  the  cortes, 
concluded  an  alliance  with  England,  and  in  1385  John  of 
Gaunt  aided  him  in  his  war  w'ith  Castile  with  an  army  df 
5,000  Englishmen.  His  reign  witnessed  the  increase  of  the 
possessions  and  power  of  the  great  nobles  by  grants  of  lands. 
In  the  fifteenth  century  the  Portuguese  took  the  lead  in  nauti- 
cal explorations  and  extended  their  voyages  along  the  coast 
of  Africa. 

In  1485  Bartholomew  Dias  rounded  the  Cape  of  Good 
Hope,  and  in  1497  Vasco  Di  Gama  reached  India  by  way  of 
the  cape.  The  Portuguese  promptly  took  advantage  of  these 
discoveries,  and  in  1 505  Almeida  was  sent  as  viceroy  to  India. 
In  1520  Magellan,  a  Portuguese  in  the  Spanish  service,  sailed 
through  the  straits  at  the  extremity  of  South  America  into 
the  Pacific  Ocean.  The  foreign  trade,  which  developed  in 
consequence  of  these  discoveries,  brought  rapid  increase  of 
wealth,  but  it  also  brought  the  poison  of  African  slavery. 
The  lands,  especially  in  the  south,  were  cultivated  by  black 
slaves.  Though  John  II  in  1484  had  broken  the  power  oif  the 
feudal  lords  by  the  drastic  remedy  of  putting  about  eighty  of 
the  leading  ones  to  death,  the  evils  of  a  state  made  up  of  a 
few  masters  an4  many  slaves  rapidly  developed  along  with 
the  increased  wealth.  Bigotry  was  not  confined  to  Spain, 
and  in  1536  the  Inquisition  was  introduced  into  Portugal 
with  the  same  cruel  and  disastrous  results  as  in  Spain.  The 
material  advantages  acquired  by  the  discoveries  of  her  sea- 
men were  not  preserved  to  the  nation.  Corruption  in  ofiicial 
stations,  especially  in  the  colonial  governments,  and  emigra- 
tion caused  by  bigotry  and  oppression  at  home  weakened  the 
foundations  of  the  state.  In  1578  Sebastian  invaded  Africa 
and  sustained  a  crushing  defeat.  Two  years  later  Portugal 
was  forced  to  submit  to  the  dominion  of  Philip  II  of  Spain. 


SPAIN  AND  PORTUGAL  441 

Ferdinand  and  Isabella  were  married  in  1469.  On  the  death 
of  Henry  IV  of  Castile  in  1474,  each  claimed  the  throne,  but 
the  succession  was  ultimately  settled  on  Isabella.  Henry's 
daughter  Joanna  was  also  a  claimant,  supported  in  her  pre- 
tensions by  a  faction  of  the  nobles  and  also  by  her  uncle 
Alfonso  V  of  Portugal.  Her  adherents  were  defeated  in  bat- 
tle. On  Jan.  20,  1479,  John  II,  of  Aragon  died,  leaving  to  his 
son  Ferdinand  the  succession  to  the  thrones  of  Aragon,  Sicily 
and  Sardinia.  Though  Ferdinand  and  Isabella  thus  came  into 
possession  of  the  kingly  office  of  all  these  countries,  they  were 
not  thereby  consolidated  into  one  kingdom,  but  for  the  time 
each  retained  its  separate  system  of  laws.  Navarre,  which 
came  to  John  II  by  his  first  wife,  passed  to  their  daughter 
Eleanor.  Ferdinand  and  Isabella  set  about  increasing  their 
own  power  and  restricting  the  privileges  of  the  nobility.  In 
1476  the  Santa  Hcruiandad  w^as  organized  as  a  popular  con- 
federation throughout  the  whole  oif  Castile  for  police  and 
judicial  purposes.  Its  members  Avere  of  the  burg^her  class  and 
its  affairs  were  managed  by  local  courts,  from  which  an  ap- 
peal was  allowed  to  the  Supreme  Court,  and  by  a  junta  of 
deputies  from  all  cities  convened  annually.  A  body  of  2,000 
cavalry  was  placed  at  the  disposal  of  the  brotherhood,  and  a 
special  code  of  laws  for  its  use  was  compiled  in  1485.  The 
jurisdiction  assumed  by  the  Brotherhood  curtailed  by  so  much 
that  of  the  nobles,  and  afforded  something  like  protection 
against  their  tyranny  and  injustice.  The  administration  of 
justice  took  on  some  of  the  characteristics  of  a  regular  sys- 
tem, and  educated  lawyers  were  appointed  to  the  chief  judicial 
positions.  To  further  strengthen  the  powers  oif  the  sover- 
eigns they  secured  the  grandmasterships  of  the  powerful  mili- 
tary orders  of  St.  lago,  Calatrava  and  Alcantara,  which  in  in- 
dependent hands  might  prove  dangerous.  Lavish  grants  of 
crown  lands  were  revoked  and  the  domains  reclaimed.  Under 
the  prudent  administration  of  Isabella,  to  whom  the  credit 
of  administrative  reforms  is  given,  the  revenues  were  increased 
from  (S85.000  reah  in  1474  to  26,283.334  in  1504  wMthout  the 
imposition  of  any  new  taxes,  but  the  latter  sum  was  received 
after  the  acquisition  of  Granada  and  includes  its  taxes.    In  his 


4i^  liVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

appointments  to  official  positions  I'crdinand  chose  men  attached 
to  his  interests,  without  regard  to  their  rank,  and  built  up  a 
personal  following  on  which  he  could  rely.  Few  sovereigns 
have  exercised  so  profound  an  influence  on  the  institutions 
and  characteristics  of  a  state  as  Ferdinand  and  Isabella.  Be- 
ing both  most  devout  Catholics,  they  set  about  removing  the 
last  vestige  df  Moslem  power  from  the  peninsula,  and  after 
a  long  and  bloody  war  on  Jan.  2,  1492,  they  entered  Granada, 
the  last  stronghold  of  the  Moors,  in  triumph.  The  religious 
zeal  of  Ferdinand  accorded  with  the  prevailing  sentiments  of 
the  great  mass  of  his  Christian  subjects,  and  by  a  skillful  use 
of  the  religio-military  orders  and  priestly  influences  he  at- 
tached to  his  interests  sufficient  force  to  enable  him  to  over- 
awe and  master  the  proud  Castilian  nobility.  It  accorded  with 
his  general  policy  as  well  as  his  religious  bigotry  to  introduce 
the  institution  of  the  Inquisition  into  Spain.  In  1478,  on  the 
application  of  the  king  and  queen,  Pope  Sextus  IV  issued  his 
bull  for  the  establishment  of  the  Holy  Office,  as  it  was  termed, 
in  Spain,  and  granting  it  the  right  to  appoint  the  inquisitors. 
In  1480  the  first  were  named  from  among  the  Dominicans, 
and  early  in  1481  they  began  their  work  at  Seville.  The 
ostensible  purpose  of  the  Holy  Office  was  to  inquire  into  and 
correct  errors  of  religious  faith,  and  thereby  jMescrve  and 
protect  in  its  purity  the  Christian  religion.  The  sa'fety  of 
human  souls  according  to  the  doctrines  of  the  church  de- 
pended, not  on  conduct  or  morals,  but  on  belief  in  the  estab- 
lished creed  and  observance  of  church  forms  and  recjuirements. 
Disbelief  of  its  doctrines  or  noncompliance  with  its  ceremonies 
was  magnified  into  crime  and  given  the  direful  name  of  heresy. 
To  discover  and  suppress  heresy  was  the  mission  of  the  Holy 
Office.  In  Spain  the  Christians  had  to  deal  with  Mohamme- 
.  dans  and  Jews,  stifif  necked  and  i>erverse  unbelie\'ers.  on  whom 
it  was  deemed  useless  to  use  argument  or  i)ersnasion,  for  they 
had  deliberately  chosen  to  follow  false  doctrines.  Many  of 
them  were  also  guilty  of  another  offense,  which  may  have  in- 
cited the  activity  of  the  inquisitors  quite  as  much  as  errors  df 
faith,  namely  that  of  possessing  wealth.  It  was  intolerable 
that  heretics  should  live  in  peace  and  enjoy  wealth  while  the 


SPAIN  AND   PORTUGAL  44.3 

king  and  clergy  wanted  money.  The  new  tribunal  commenced 
its  work  vigorously,  and  in  the  first  year  298  victims  were 
burned  at  Seville  alone  and  their  estates  confiscated.  In  ans- 
wer to  protests  from  citizens  who  did  not  approve  of  this 
barbarity,  the  Pope  ordered  a  more  mild  administration  of  the 
Holy  Ofiice  and  named  the  archbishop  of  Seville  as  sole  judge 
of  appeals  in  matters  of  faith.  In  1483  Thomas  of  Torquem- 
ada  was  named  by  the  Pope  inquisitor  general  for  Castile  and 
Leon,  and  he  proceeded  to  organize  his  dread  tribunals.  He 
was  the  president  of  the  court  wnth  two  lawyers  as  assessors 
and  three  royal  counsellors.  This  force  being  found  still  in- 
sufficient for  the  work,  a  central  court  was  organized  styled 
the  Conscjo  dc  la  Suprcuia,  composed  of  the  inquisitor  gen- 
eral, six  aiX)Stolical  counsellors,  a  fiscal  procuratbr,  three 
secretaries,  an  algiiazil  (chief  of  police),  a  treasurer,  four 
ser\ants,  two  informers,  and  such  other  agents  as  might  be 
needed  from  time  to  time.  Under  this  central  tribunal  there 
were  four  local  ones.  All  the  officials  connected  with  the  Holy 
Office  were  paid  out  of  the  confiscated  estates  and  were  there- 
fore directly  interested  in  finding  heretics  of  wealth  and  con- 
\icting  them.  The  Inquisition  proceeded  to  formulate  its 
rules,  which  Avere  embodied  in  thirty-nine  articles  and  defined 
the  procedure  of  the  Holy  Office.  These  provided  for  sum- 
moning heretics  to  come  forward  and  confess,  fixed  the  pen- 
alties to  be  borne  by  the  penitent  and  submissive,  regulated  the 
treatment  af  j^enitents  in  prisons,  the  torture  to  extort  con- 
fessions and  other  procedure  of  trials,  and  authorized  the  con- 
demnation of  dead  heretics  whose  estates  were  coveted.  The 
In(piisition  was  nowdiere  approved  by  the  people  and  occa- 
sioned a  revolt  in  Aragon,  but  the  combined  power  of  the 
church,  the  religious  orders  and  the  crown  maintained  it.  The 
])rocedure  was  provided  with  ample  forms  to  fill  the  require- 
ments of  a  judicial  system,  but  none  of  them  were  designed 
to  afford  protection  to  an  innocent  i>erson  falsely  accused. 
When  complaint  was  made,  a  preliminary  examination  was 
held  and  the  result  reported  to  the  tribunal.  If  the  case  w^as 
regarded  as  one  calling  for  action,  the  informers  and  wit- 
nesses were  reexamined  and  the  evidence  submitted  to  "the 


444  EVOLUTION  OF  GOVERNMENTS  ANIU  LAWS 

Qualifiers  of  the  Iloly  Office,"  a  body  of  priests.  These  hav- 
ing given  their  opinion  against  the  accused,  as  was  their  cus- 
tom, he  was  removed  to  the  secret  prison  of  the  (3ffice  and 
cut  off  from  all  communication  with  the  outside  world.  Then 
followed  three  "first  audiences,"  in  which  the  officials  did 
their  best  to  extort  a  confession.  if  unsuccessful  in  this 
the  fiscal  in  charge  demanded  torture  to  extort  a  confession. 
After  torture,  for  which  the  most  fiendish  devices  were  used, 
the  victim  was  taken  before  the  court,  where  the  charges  were 
for  the  first  time  read  to  him,  and  he  was  asked  if  he  desired 
to  make  a  defense.  If  he  answered  that  he  did,  he  was  al- 
lowed to  choose  a  lawyer  from  a  list  furnished  by  the  court, 
all  of  whom  could  be  relied  on  to  offer  no  obstacle  to  a  con- 
viction. After  all  the  evidence  was  in  the  Qualifiers  were 
again  called  on  for  their  opinion  on  the  whole  case.  This 
being  adverse  to  the  accused,  he  was  sentenced  with  privilege 
of  appeal  to  the  Supreme  tribunal  or  to  the  Pope.  These  ap- 
peals afforded  a  chance  for  the  friends  of  the  accused  to 
contri'bufe  their  means  to  the  papal  treasury.  If,  as  sometimes 
happened,  the  victim  was  at  last  acquitted,  he  might  retire  to 
his  home,  broken  in  body  and  ruined  in  fortune  with  no  re- 
dress against  his  accusers.  If  condemned,  he  was  brought 
before  the  court,  regaled  with  the  solemnity  of  the  Auto-da-fe 
and  irtformed  of  his  fate.  He  might  then  become  reconciled 
and  as  a  penitent  submit  to  the  severe  penalties  prescribed,  or, 
refusing  to  do  so,  he  was  "relaxed,"  that  is  turned  over  to  the 
secular  authorities  to  be  burned ;  for  the  church  shed  no  blood ! 
Later  under  Ximenes  the  institution  was  further  extended 
by  the  organization  of  ten  tribunals,  at  Seville,  Jean,  Toledo, 
Estramadura.  Murcia,  Valladolid,  Majorica,  Pampeluna,  Sar- 
dinia and  vSicily,  and  under  Charles  V  and  Philip  II  it  was 
extended  and  performed  its  horrible  work  on  the  Protestants 
of  the  Netherlands,  of  whom  great  numbers  were  tortured  and 
burned.  The  institution  was  introduced  into  Portugal  in  1536 
on  the  solicitation  of  John  III,  where  it  performed  its  deadly 
office  with  great  vigor.  Its  blighting  influences  were  mani- 
fested by  a  marked  decrease  of  the  population  of  Spain  and 
Portugal  and  by  the  crushed  spirit  of  the  people.     Literature 


SPAIN  AND   PORTUGAL  445 

could  not  thrive  where  almost  any  publication  was  liable  to  be 
found  by  the  Qualifiers  to  contain  heretical  expressions.  The 
figures  given  of  the  numbers  who  in  Spain  became  victims  o'f 
the  Holy  Office  prior  to  1810  are  sufficiently  appalling,  31,912 
burnt  alive,  291,450  imprisoned  as  penitents  and  17,659  burned 
in  effigy  and  their  estates  confiscated.  But  this  by  no  means 
indicates  the  full  measure  of  misery  and  evil  caused  by  this 
awful  wickedness.  Great  numbers  left  their  homes  and  per- 
ished in  foreign  lands  to  escape  its  hands,  and  all  freedom  of 
expression  and  intellectual  progress  were  blasted.  Though 
acting  with  close  observance  of  forms  and  executing  what 
were  regarded  as  written  laws,  sanctioned  by  that  authority 
most  highly  venerated,  the  Roman  Church,  in  their  actual 
workings  these  tribunals  utterly  disregarded  all  law,  human 
and  divine,  and  trials  before  them  were  conducted  by  methods 
that  could  not  fail  of  the  most  diabolical  results.  The  accusers 
were  the  judges  and  profited  by  ever}^  conviction.  The  pro- 
ceedings were  secret,  and  the  accused  denied  all  tests  by  which 
the  falsity  of  the  evidence  against  him  could  be  shown,  or  by 
which  ifacts  favorable  to  his  innocence  might  be  established. 
Confinement  and  torture  were  inflicted  on  those  accused, 
whether  guilty  or  innocent.  But  beneath  all  this  the  whole 
system  was  utterly  wanting  in  any  moral  basis.  The  alleged 
crime  of  heresy  is  a  myth.  The  opinions  on  religious  subjects 
of  one  mind  are  as  sacred  as  those  of  another. 

Though  utterly  indefensible  in  its  purposes  and  methods 
and  baneful  in  its  results,  the  Inquisition  was  still  a  logical 
outgrowth  of  the  prevailing  spirit  of  the  times.  During  more 
than  seven  centuries  difference  of  religious  faith  had  fur- 
nished the  pretext  for  bloody  wars  between  Christians  and 
Mohammedans,  in  which  many  battles  were  fought  in  either 
of  which  more  men  were  killed  for  religion's  sake  than  all 
whose  lives  were  taken  by  the  Inquisition.  Though  the  moral 
sense  of  the  Christian  world  O'f  today  revolts  at  the  cruelties 
and  rank  injustice  of  the  Inquisition,  it  still  glories  in  the  deeds 
of  the  Cid  and  the  many  renowned  kings  of  Spain  and  Portu- 
gal who  led  their  people  to  death  in  wars  agninst  the  infidels, 
and  draws  deep  satisfaction  from  accounts  of  the  wholesale 


446  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

slaughter  of  the  more  pohshed  and  industrious  followers  of 
the  Prophet.  To  establish  a  tribunal  to  punish  those  who 
after  the  expulsion  of  the  Moors  still  persisted  in  denying  the 
creed  of  the  victors  was  merely  carrying  the  purpose  of  rid- 
ding Spain  of  unbelievers  to  its  logical  end.  What  use  to 
drive  out  the  IMoslems  by  force  of  arms  if  unbelievers  might 
still  retain  their  wealth  and  dwell  in  security  in  Spain?  Why 
kill  heretics  in  battle  if  they  were  entitled  to  live  in  peace  after 
their  armies  were  destroyed?  The  savagery  of  war  still  gains 
the  approval  and  even  the  admiration  of  most  of  mankind, 
though  it  has  been  productive  in  Spain  of  a  hundre<l  times 
more  misery  than  the  Inquisition. 

The  wars  of  Ferdinand  were  not  confined  to  those  against 
the  Moorish  followers  of  the  Prophet,  but  in  Italy  he  fought 
against  other  Christians  for  territory  which  he  claimed  as 
appurtenant  to  the  throne  of  Aragon,  and  wrested  Naples 
from  the  French  king.  The  greatest  glory  of  the  reign  of 
Ferdinand  and  Isabella  came  as  the  'fruit  of  a  peaceful  enter- 
prise for  which  Isabella  made  provisions.  The  discovery  of 
America  by  Columbus  gave  Spain  a  prestige  and  an  oppor- 
tunity for  expanding  its  wealth  and  power  far  outweighing  all 
the  conquests  of  Ferdinand  in  his  bloody  wars.  The  year  1492 
witnessed  the  departure  of  the  Moors  from  Spain  and  the 
opening  to  view  of  the  new  world.  On  the  death  of  Isabella 
in  1504  there  was  a  temporary  separation  of  Aragon  and  Cas- 
tile, occasioned  by  the  selection  by  the  Castilians  of  the  arch- 
duke Philip  as  regent  during  the  minority  of  the  infant 
Charles,  but  Philip's  death  was  followed  by  the  choice  of 
Ferdinand  as  regent.  In  15 12  he  wrested  Navarre  ifrom 
France,  thus  combining  all  Spain  under  his  rule.  The  policy 
of  Ferdinand,  steadily  pursued  throughout  his  long  reign, 
resulted  in  the  concentration  of  the  powers  of  government  in 
the  hands  of  the  king.  The  administration  was  carried  on 
through  the  instrumentality  of  five  councils,  the  "Royal  Coun- 
cil" as  the  highest  court  of  justice,  the  "Council  of  the  Su- 
preme" for  ecclesiastical  afTairs  and  the  Inquisition,  the 
"Council  of  the  Orders"  for  the  direction  of  the  great  militar}' 
orders,  the  "Council  of  Aragon"  for  the  management  of  that 


SPAIN  AND   PORTUGAL  447 

kingdom  and  Naples  and  the  "Council  of  the  Indies"  'for  the 
territories  discovered  by  Columbus.  The  firm  alliance  be- 
tween church  and  state  and  the  religious  policy  established 
during  this  reign  fixed  the  character  and  moulded  the  policy 
of  the  Spanish  government  till  modern  times,  and  still  in- 
fluence it  in  great  measure.  Ferdinand  died  in  15 16  and 
Charles,  son  of  his  daughter  Joanna  and  of  her  husband  Philip 
son  of  the  German  Emperor  Maximilian  I,  succeeded  to  the 
thrones  of  Castile  and  Aragon,  and  thus  the  House  of  Haps- 
burg  came  to  the  united  Spanish  throne.  In  15 19  Charles 
succeeded  his  father  as  emperor.  Serious  revolts  followed. 
Charles  was  a  foreigner  by  birth,  reared  in  the  Netherlands, 
and  it  was  only  by  intimidation  that  he  obtained  supplies  for 
his  wars  from  the  cortes.  After  his  authority  had  become 
well  established  and  all  rebellions  suppressed,  Charles  con- 
vened the  Castilian  cortes  in  1523  and  compelled  them  to  grant 
supplied  before  presenting  their  petitions  for  redress,  thus 
establishing  a  precedent  adhered  to  thereaifter,  which  gave 
him  what  he  required  and  still  left  him  free  to  reject  all  de- 
mands of  the  cortes.  During  his  reign  Cortes  conquered 
Mexico,  Pizarro,  Peru,  and  Milan  and  a  portion  of  North 
Africa  were  added  to  his  dominions.  In  1538,  as  a  result  of 
the  refusal  of  the  nobles  in  the  Castilian  cortes  to  consent  to 
an  excise  tax,  Charles  excluded  them  from  seats  in  the  cortes, 
which  thereafter  consisted  of  only  thirty-six  deputies  from 
eighteen  towns,  who  were  wholly  wanting  in  strength  to  op- 
pose the  will  of  the  king.  On  the  abdication  of  the  throne  by 
Charles,  his  brother  Ferdinand  became  emperor  of  Germany, 
and  his  son  Philip  succeeded  to  the  Spanish  throne  and  made 
Madrid  his  capital.  He  was  a  narrow  bigot,  and  his  policy 
was  thoroughly  despotic.  By  military  'force  he  crushed  all 
remnants  of  popular  liberty,  and  by  the  aid  of  the  Inquisition 
he  destroyed  whomsoever  he  pleased.  He  caused  the  fiisfica 
of  Aragon  to  be  put  to  death  and  assumed  the  right  of  naming 
his  successor.  The  control  of  the  cortes  over  judicial  affairs 
was  taken  away.  The  extension  of  S]ianish  dominions  gave 
to  the  king  ample  power  to  take  away  the  ancient  privileges  of 
the  provincial  cortes  separately,  and  the  Spanish  people  suf- 


448  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

fered  from  the  spread  of  Spanish  dominion.  In  1580  Phihp 
maintained  his  claim  to  the  throne  of  Portugal  by  an  army 
commanded  by  the  Duke  of  Alva,  and  thus  the  whole  penin- 
sula became  united  under  his  rule.  Inuring  his  reign  the  In- 
quisition emi)loyed  its  force  to  crush  Protestantism  in  the 
Netherlands,  but  met  with  a  stubborn  resistance  that  after  the 
martyrdom  of  vast  numbers  of  its  citizens  finally  resulted  in 
independence. 

Philip  died  in  1598,  leaving  a  great  empire  to  his  son  Philip 
III,  yet  the  search  for  gold  in  the  New  World  and  the  prose- 
cution of  wars  for  the  aggrandizement  of  the  king  consumed 
the  lives  of  men  and  impoverished  those  rich  districts,  which 
when  properly  cultivated  by  a  peaceful  and  industrious  popu- 
lation yielded  riches  in  great  abundance.  Though  in  the  wilds 
of  America  priests  sought  to  convert  the  heathen,  Spanish 
policy  everywhere  was  wanting  in  moral  strength.  Wars  of 
conquest  and  the  vast  acquisitions  of  American  gold  failed  to 
make  good  the  loss  of  the  natural  returns  of  the  efforts  of 
her  soldiers  if  employed  in  peaceable  callings.  The  gold  suf- 
ficed for  only  one  purchase  and  then  passed  into  the  channels 
of  trade.  The  industries  of  the  Netherlands  enabled  them  to 
keep  the  gold  which  Spain  wrested  from  her  new  subjects. 
The  narrow  bigotry  of  Philip  III  found  expression  in  1609 
in  an  order  requiring  all  Moriscoes  to  leave  Spain  within  three 
days  under  penalty  of  death.  The  order  was  wholly  without 
justification  in  morals  or  economics,  as  the  Moriscoes  consti- 
tuted the  most  industries,  skillful  and  peaceful  portion  of  the 
population.  They  were  leaders  in  agriculture  and  manufac- 
tures, and  their  expulsion  was  a  crushing  blow  to  the  material 
resources  of  the  kingdom,  as  well  as  a  most  cruel  and  un- 
justifiable infliction  on  them.  By  their  expulsion  the  revenues 
were  greatly  reduced.  The  desire  for  foreign  dominion  and 
devotion  to  the  Catholic  cause  combined  sufficient  influence 
on  Philip  to  draw  him  into  the  Thirty  Years'  war  in  Germany. 
Spanish  troops  took  a  leading  part  in  that  great  contest  and 
came  in  contact  wnth  the  Swedes  and  their  Protestant  allies. 
The  wars  brought  neither  profit  nor  glory  to  vSpain.  The 
Dutch   gained   signal   victories   over   the    Spanish   fleets   and 


SPAIN  AND   PORTUGAL  449 

destroyed  their  naval  ascendency,  which  had  resulted  from 
the  discovery  of  America.  Though  great  victories  were 
gained  on  land,  they  were  barren  of  advantageous  results. 
An  edict  calling  all  able-bodied  men  to  join  the  army  resulted 
in  a  revolt  in  Catalonia,  the  driving  out  of  the  Castilian  troops 
and  the  establishment  of  a  republic  under  the  protection  of 
France.  Still  more  important  in  its  permanent  consequence 
was  the  revolt  of  Portugal,  occasioned  by  the  same  measure, 
and  resulting  in  the  independence  of  that  kingdom  in  1640. 
As  a  result  of  naval  victories  the  Dutch  took  from  Spain  its 
possessions  in  Malacca,  Java,  Ceylon  and  much  of  Brazil,  and 
forced  it  to  abandon  its  claims  to  Holland  and  even  to  cede 
to  them  the  northern  districts  of  Brabant,  Flanders  and  Lim- 
burg.  Catalonia  was  soon  reduced  to  submission.  France 
having  effected  an  alliance  with  England,  forced  the  Spaniards 
to  submit  to  still  ifurther  loss  of  territory  in  the  low  coun- 
tries. Under  Philip  IV  and  Charles  II  Spain  continued  to 
lose  prestige  down  to  the  time  of  the  death  of  the  latter  in 
1700,  The  eft'ects  of  religious  bigotry,  of  desix)tic  govern- 
ment, of  the  concentration  of  the  wealth  of  the  country  and 
the  ownership  of  the  lands  in  monastic  establishments  and 
an  indolent  nobility,  devoid  of  all  enterprise  and  given  over 
to  luxurious  living,  and  of  a  most  unwise  and  oppressive  sys- 
tem of  taxation,  are  better  shown  by  a  comparison  of  con- 
ditions in  Spain  at  the  close  of  that  period  with  those  in 
former  times,  than  by  the  mere  loss  of  rulership  over  distant 
provinces.  The  population  of  the  country,  estimated  at 
twenty  millions  under  the  Arabs  and  at  twelve  millions  under 
Ferdinand  and  Isabella,  had  fallen  to  six  millions  under 
Charles.  The  Moors,  the  most  industrious  element  of  the 
population,  had  been  driven  out;  manufactures  declined,  fer- 
tile districts  became  barren  through  lack  of  cultivation,  the 
destruction  of  trees  and  general  inefificiency  of  the  agricultural 
system.  After  being  the  first  naval  power  in  the  world  Spain 
ceased  to  be  formidable  on  the  sea.  Her  foreign  commerce 
passed  into  the  hands  of  the  Dutch  and  English  merchants, 
and  she  was  unable  to  hold  the  trade  of  even  her  own  colo- 
nies in  the  new  world.     Education  was  neglected.    The  peoi)le 


450  EVOLUTION  OF  (iOVF.RNMKNTS  AND  LAWS 

were  neither  instructed  in  letters  nor  in  the  useful  arts. 
Nowhere  else  has  the  contrast  between  a  fairly  just  and  liljeral 
Mohammedan  polic)-  and  a  hij^dted  cruel  and  unjust  enforce- 
ment of  a  creed  called  Christian  been  exhibited  so  disad- 
vantageously  to  the  latter  as  in  Spain.  Nowhere  else  have 
scientific  truth  and  the  moral  law  been  so  ruthlessly  sui)er- 
seded  by  a  false  and  cruel  priestly  tyranny.  The  war  of  the 
Spanish  succession,  which  ensued  on  the  death  of  Charles  II, 
involved  no  princi[)le  of  interest  to  the  multitude,  but  was  a 
contest  instii^ated  by  crowned  heads  for  their  own  ends. 
France,  luii^land,  Portugal,  Holland  and  Austria  were  all  in- 
volved, and  bloody  battles  were  fought,  but  at  the  end  by  the 
accession  of  the  Archduke  Charles  to  the  throne  of  Austria 
and  the  German  empire  England  found  tliat  the  cause  ior 
which  it  had  fought  was  the  one  most  dangerous  t()  its  inter- 
ests. Peace  was  concluded  leaving  Gil)raltar  and  Minorca  in 
the  possession  of  England  with  the  added  privilege  of  im- 
porting slaves  into  the  Spanish  colonies.  The  right  of  Philip 
V  to  the  Spanish  throne  was  recognized,  the  cause  of  the  Cata- 
lans, who  had  suj^ixjrted  Charles,  was  abandoned,  and  they 
were  left  to  defend  themselves.  Though  they  fought  obsti- 
nately, the  power  of  Castile  was  too  great;  they  were  crushed 
and  all  their  ancient  liberties  were  forever  after  denied  them. 
Thereafter  they  were  ruled  from  Madrid  under  Castilian  laws. 
Later  Philip  neglected  his  subjects  at  home  and  caused  many 
of  them  to  fight  against  Austria  for  possessions  in  Italy.  The 
contest  dragged  on  till  his  death  in  1744.  No  advantage  came 
to  Spain  from  the  long  contest,  but  a  little  added  territory 
for  Don  Philip  to  pass  to  Austria  on  the  extinction  O'f  his 
male  descendants. 

Ferdinand  VI,  spoken  of  as  weak  and  obstinate,  had  the 
blessed  courage  to  keep  the  country  at  peace.  He  refused  to 
be  drawn  into  the  Seven  Years'  war,  and  for  the  thirteen  years 
of  his  reign  he  allowed  his  subjects  exemption  from  the  hor- 
rors of  war.  The  reign  of  this  monarch  also  witnessed  a 
marked  reaction  against  the  papal  power.  In  1753  he  as- 
serted his  right  to  appoint  to  all  important  benefices,  and  of 
the  T2,ooo,  which  the  Pope  had  filled  before,  Ferdinand  left 


SPAIN   AND   PORTUGAL  45i 

only  fifty-two.  He  next  issued  an  edict  that  henceforth  papal 
bulls  should  not  be  obeyed  till  they  had  received  the  royal  sanc- 
tion. Charles  III,  who  came  to  the  throne  in  1759,  continued 
the  work  by  driving  out  the  Jesuits,  restricting  the  extension 
of  church  lands,  and  moderating  the  cruelties  of  the  Inquisi- 
tion. At  the  time  of  the  American  revolution  Spain  joined 
with  France  against  England,  and  on  the  conclusion  of  peace 
gained  Minorca  and  Florida.  This  reign  was  one  of  material 
progress.  The  ministers  sought  to  restore  prosperity  by  the 
encouragement  and  protection  of  industry  and  trade.  By  a 
most  commendable  ordinance  issued  in  1773  an  eftort  was 
made  to  remove  the  Castilian  prejudice  against  trade  by  de- 
claring that  no  loss  of  rank  or  privilege  should  be  occasioned 
by  engaging  in  industrial  occupations.  Agriculture  was 
stimulated  by  the  construction  of  roads  and  canals,  and  by 
removing  the  restriction  on  inclosures,  that  had  been  imposed 
at  the  instance  of  the  owners  of  the  great  flocks  oif  sheep 
which  overran  the  country  and  destroyed  all  cultivated  crops. 
Charles  III  died  and  Charles  IV  came  to  the  throne  at  the 
outbreak  of  the  French  revolution.  A  Bourbon  king  could 
not  sympathize  with  a  demand  for  popular  rights,  and  the 
policy  of  the  Spanish  monarch  was  reactionary  and  directed 
to  strengthening  the  despotism.  Spain  joined  the  first  coali- 
tion against  France  and  sustained  crushing  defeats  in  the 
campaigns  of  1793  find  1794,  due  mainly  to  inefficient  organi- 
zation and  want  of  supplies.  This  was  followed  by  a  treaty 
of  peace  which  bound  Spain  in  an  alliance  with  France  against 
England.  In  1800  Spain  ceded  Louisiana  to  France  and 
agreed  to  aid  her  in  all  her  wars,  and  in  1801  invaded  Portu- 
gal at  the  call  of  Napoleon.  In  the  struggle  with  England 
the  Spanish  fleet  was  destroyed  and  the  prestige  of  the  former 
nation  at  sea  firmly  established,  but  French  influence  still 
dominated,  and  in  1808  Napoleon  caused  Charles  IV  to  ab- 
dicate and  placed  his  brother  Joseph  on  the  throne.  A  popular 
uprising  was  temporarily  successful  and  entrusted  the  gov- 
ernment to  a  junta  of  thirty-four,  to  rule  in  the  name  of 
Ferdinand,  but  Napoleon  soon  scattered  their  army  and  re- 
stored his  brother  to  power.     The  national  party  made  Cadiz 


452  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

its  capital,  and  in  1810  the  cortes  assembled  there.  In  1812  it 
promulgated  a  constitution  providing  for  a  limited  monarchy 
with  all  legislative  power  in  the  hands  of  a  single  national 
assembly. 

With  the  aid  of  the  English  under  Wellington  the  French 
were  driven  out  of  Spain  in  181 3,  and  in  the  next  year  Fer- 
dinand MI  returned  to  Madrid  and  assumed  authority.  He 
set  aside  the  liberal  constitution,  restored  the  nobles  and  the 
monasteries  to  their  privileges  and  exemptions  from  taxation, 
allowed  the  Jesuits  to  return  and  the  Inquisition  to  resume 
operations.  A  tyrannical  and  profligate  court  and  bigoted 
clergy  again  combined  to  crush  all  liberal  sentiment.  In  181 9 
the  sale  of  Florida  to  the  United  States,  the  revolt  of  the  Span- 
ish colonies  in  America  and  the  ill  success  of  the  government 
in  its  efforts  to  reduce  them  to  obedience,  caused  great  popular 
discontent  throughout  Spain.  In  1820  a  revolt  started  at 
Cadiz,  which  rapidl)-  spread  over  the  whole  country.  The 
king  accepted  the  constitution  of  18 12,  dismissed  his  ministers 
and  put  liberals  in  their  places.  The  cortes  met  and  proceeded 
to  abolish  the  monasteries,  the  Inquisition,  the  clerical  titles 
and  entails  of  landed  estates,  and  to  pass  laws  to  secure  free- 
dom of  the  press  and  of  public  meetings.  This  was  distasteful 
to  the  monarchs  oif  Europe,  and  in  1823,  at  the  dictation  of  the 
Holy  Alliance  through  a  congress  at  Verona  held  by  France, 
Austria,  Russia  and  Prussia,  a  French  army  invaded  Spain 
and  restored  despotic  power  to  Ferdinand. 

In  1829  Ferdinand  issued  an  edict  abolishing  the  Salic  law, 
which  excluded  females  from  succession  to  the  throne.  In 
1833  he  died,  and  his  infant  daughter  Isabella  was  proclaimed 
queen  with  her  mother  as  regent.  Ferdinand's  brother,  Don 
Carlos,  claimed  the  crown  under  the  Salic  law  and  drew  to 
his  aid  the  supporters  of  absolutism.  Christiana  was  support- 
ed by  the  liberals  and  granted  a  constitution  establishing  two 
legislative. chambers  chosen  by  indirect  election.  This  was  not 
satisfactory  to  the  liberals,  and  in  1836  the  constitution  of 
1812  was  revived.  By  1839  the  Carlists  were  subdued.  In 
1843,  after  temporary  ascendency  of  the  radicals,  which  had 
caused  Christiana  to  withdraw  to  France  and  the  selection  of 


SPAIN  AND   PORTUGAL  453 

Espertero  as  regent  by  the  cortes,  Isaljella  became  of  age  and 
was  recognized  as  queen.  The  history  of  her  reign  is  one  of 
court  intrigue,  with  the  reactionary  party  in  the  ascendency 
most  of  the  time.  Married  to  a  cousin,  who  was  beheved  to 
be  an  imbecile,  though  not  reahy  quite  so,  she  had  piety  with- 
out morahty,  and  the  Spanish  nation  had  to  bear  the  shame  of 
a  notoriously  licentious  woman  as  its  queen ;  fat,  coarse  and 
indolent,  she  yet  was  good  natured,  generous  and  kind  hearted. 
She  even  delighted  in  granting  pardons,  to  which  Spanish 
monarchs  generally  showed  great  aversion.  In  1854  there  was 
a  popular  uprising  with  rioting  at  Madrid,  resulting  in  the 
appointment  af  a  liberal  ministry,  whose  purposes  were  ex- 
pressed in  a  proclamation  stating:  "We  desire  the  preserva- 
tion of  the  throne,  but  without  the  cannarilla  which  dishonors 
it;  the  rigorous  enforcement  of  the  fundamental  laws,  improv- 
ing them,  especially  those  of  elections  and  the  press ;  a  diminu- 
tion of  taxation  founded  on  strict  economy,  and  also  respect 
to  seigniority  and  merit  in  the  military  and  naval  services. 
We  desire  to  give  the  towns  the  local  independence  necessary 
to  preserve  and  to  increase  their  own  interests,  and  as  a  guar- 
antee of  these  things  we  desire  a  national  militia." 

In  1866  Isabella  recalled  her  old  ministers,  the  most  prom- 
inent liberals  were  driven  into  exile  and  the  cortes  dissolved. 
In  1868  another  revolt  occurred  which  caused  Isabella  to  go 
to  France.  A  cortes  was  summoned  and  met  in  1869,  which 
adopted  a  new  constitution  providing  for  a  limited  monarchy. 
It  substituted  the  principle  that  the  sovereign  power  was  de- 
rived from  the  people  for  the  doctrine  of  divine  right  of  kings, 
granted  religious  liberty  and  provided  for  a  Council  of  State, 
a  Senate  and  House  oif  Representatives.  A  regent  was  chosen 
to  hold  pending  the  choice  of  a  king.  In  Nov.  1870  Amadeo 
of  Savoy  was  chosen  by  the  cortes,  but  he  left  the  country, 
which  he  could  not  successfully  govern,  in  Feb.  1873.  There- 
upon the  cortes  proclaimed  a  republic.  War  with  the  Carlists 
followed  without  very  decisive  results.  The  republic  lacked 
vigor,  and  on  the  last  day  of  1874  Alfonso  Xil,  son  of  Isa- 
bella IT.  was  pn>claimcd  king  and  acknowledged  by  the  army. 
There  had  been  five  changes  of  ministry  in  less  than  two  years 


454  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

with  mucli  modification  of  the  theory  of  government,  the  hist 
being  a  virtual  dictatorship.  The  Carhsts  continued  the  fight 
for  a  short  time,  when  Don  Carlos  gave  up  the  struggle  and 
left  the  country.  Under  the  reign  of  Alfonso  XII  as  a  con- 
stitutional monarch  Spain  enjoyed  peace  till  his  death  in  18S5. 
After  his  death  a  son  was  born,  who  came  to  the  throne  as 
Alfonso  XIII.  His  mother  ruled  as  regent  through  his  mi- 
nority, during  which  time  Spain  was  forced  by  the  United 
States  to  relinquish  its  claims  to  Cuba,  Porto  Rico  and  the 
Philippine  Islands. 

Shorn  of  its  foreign  possessions,  it  does  not  necessarily  fol- 
low that  the  people  have  to  face  more  unfavorable  conditions. 
On  the  contrary  there  are  evidences  already  that  the  statesmen 
of  Spain  are  beginning  to  grasp  the  true  basis  of  national 
greatness.  Proud,  indolent  grandees,  who  refuse  to  do  any- 
thing useful  and  squander  the  resources  of  the  country  in 
ostentatious  living,  are  a  curse  and  nothing  more  to  any  coun- 
try. Those  of  Spain  have  ifor  many  centuries  been  advanced 
types  of  worthless  nobles.  Though  popular  government  was 
not  unknown  in  many  of  the  districts  of  Spain,  and  the  people 
of  Aragon,  Catalonia,  the  Basque  provinces  and  the  large  cities, 
have  exhibited  a  disposition  and  capacity  for  preserving  popu- 
lar liberty,  the  composition  of  society  throughout  the  nation 
seems  to  be  such  as  to  still  invite  abuses  in  the  administration 
of  public  affairs.  The  grand  lack  in  Spain,  as  everywhere  else 
on  the  face  of  the  earth,  is  of  knowledge,  social  virtue  and 
morality.  The  people  are  more  generally  illiterate  than  else- 
where in  Europe,  though  under  the  Arabs  their  schools  were 
probably  the  best  then  in  existence.  Primai"y  education  has 
been  compulsory  by  law  since  1857,  but  only  a  small  portion  of 
the  population  can  read  and  write ;  about  twenty-five  per  cent. 
Progress  is  being  made,  however,  and  the  time  is  probably  not 
far  distant  when  the  Spanish  people  will  take  the  rank  to 
which  they  are  entitled,  and  which  in  past  generations  was  not 
inferior  to  any  others  in  Europe. 

By  the  fundamental  law  o/f  Jtme  30,  1878  the  monarchy  is 
hereditary,  and  the  king  becomes  of  age  at  sixteen.  He  is 
grand  master  of  the  eight  orders  of  knighthood.    He  exercises 


SPAIN  AND   PORTUGAL  455 

the  legislative  power  in  conjunction  with  the  cortes,  which 
is  composed  of  a  senate  and  a  chamber  of  deputes.  The  senate 
is  made  up  of  three  orders:  i.  Members  by  right  of  birth, 
princes,  rich  nobles  and  the  highest  state  officials.  2.  Members 
nominated  by  the  king  for  life.  3.  Members  elected  by  the 
state  corporations  and  chief  tax  payers  for  a  term  of  five 
years.  The  number  of  the  first  two  classes  must  not  exceed 
one  hundred  and  eighty,  and  there  may  be  as  many  of  the 
third.  The  chamber  oi  deputies  consists  of  one  deputy  for 
every  50,000  population,  elected  for  five  years,  by  electors 
twenty-five  years  of  age,  who  have  paid  a  land  tax  of  twenty- 
five  pcsatas  for  one  year  or  an  industrial  tax  of  fifty  pesatas 
for  two  years.  There  are  eight  executive  departments,  pre- 
sided over  by  ministers  responsible  to  the  cortes  for  their  acts. 
Tn  each  province  there  is  a  civil  governor  and  an  elective  coun- 
cil chosen  by  the  communes.  The  system  of  laws  as  in  most 
European  states  is  based  on  the  Roman  law  with  local  modifi- 
cations. There  is  a  court  of  first  instance  in  each  of  the  501 
judicial  districts  into  which  the  kingdom  is  divided  and  a  court 
of  second  instance  in  each  of  the  fifteen  divisions  in  which 
they  are  grouped,  with  a  supreme  court  of  cassation  or  review 
at  Madrid.  Jitstice  is  administered  publicly,  and  parties  must 
be  represented  by  counsel. 

On  achieving  independence  ifrom  Spain  in  1640  Portugal 
recognized  John  IV  as  king.  Portugal  exhibited  substantially 
the  same  tendencies  toward  increased  power  in  the  monarch 
as  most  European  states  for  the  next  century,  though  some 
great  reforms  were  made,  especially  in  the  reio;n  of  Joseph, 
who  came  to  the  throne  in  1750  and  abolished  slavery,  which 
had  become  a  great  curse  to  the  country.  From  1677  to  1828 
the  cortes  never  convened.  The  people  of  Portugal  were  pro- 
foundly impressed  by  the  French  revolution  and  were  involved 
in  the  succeeding  wars.  Tn  1820  a  constituent  assembly 
framed  a  constitution  abolishing  the  Inquisition  and  with 
many  radical  changes,  but  this  constitution  nc\'cr  became  fullv 
operative. 

Tn  1826  Pedro  IV.  who  had  ruled  Brazil  uii<ler  his  father 
succeeded   to  the   thrmie  of   Portugal   also.      TTc  drew   tif)  a 


456  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

charter  for  a  constitutional  monarchy  and  appointed  his  brother 
Miguel  regent  of  Portugal.     Miguel  refused  to  recognize  the 
constitution  and  assumed  absolute  power.     Civil  war  soon  fol- 
lowed.   The  struggle  between  the  reformers  and  the  adherents 
to  the  ancient  order  continued  with  varying  success  and  more 
or  less  violence  to  the  close  of  the  reign  of  Maria  II.     Some- 
times the  constitution  was  followed,  then  it  was  amended,  and 
at  other  times  disregarded,  but  by  the  time  of  the  accession 
of  Pedro  V  in  1855  matters  had  become  fairly  settled,  and 
Portugal  entered  on  a  more  peaceful  and  prosperous  career. 
In  1852,   1878  and  1895  the  charter  of  1826  was  amended. 
The  monarchy  was  hereditary,  and  the  king  ruled  with  the 
advice  of  a  cabinet  of  seven  members  chosen  by  a  premier 
named  by  the  king.    The  cortes  consisted  of  a  House  of  Peers 
of  ninety  members,  nominated  by  the  king  for  life.     They 
were  not  all  titled  nobles,  nor  were  all  the  nobility  entitled  to 
seats.     The  House  df  Deputies  had  one  hundred  and  forty- 
eight  members,  elected  by  all  male  citizens  twenty-five  years 
of  age  or  over,  who  paid  above  $1.10  direct  tax  per  year  or 
had  an  annual  income  from  real  estate  of  $4.50.     By  the 
revolution  of  19 10  the  monarchy  was  overthrown  and  a  repub- 
lic established.     The  religious  orders  were  expelled  and  their 
property  confiscated.     The  Council  of  State  was  abolished  as 
were  also  all  hereditary  titles  and  privileges.     The  country 
is  divided  into  seventeen  administrative  and  twenty-six  judicial 
districts.     There  are  courts  of  appeals  at  Lisbon  and  Oporto 
and  a  Supreme  Court  at  Lisbon.     There  are  governors  in  the 
administrative  districts  and  elected  councillors  in  each  of  the 
292    concellos   and    in    each    of    the    3960    frcgnenias   there 
is  a  magistrate  elected  by  the  people,  with  authority  corres- 
ponding to  that  of  a  justice  of  the  peace.     Education  is  com- 
pulsory under  the  law  of   1844,  which  required  all  children 
from  seven  to  fifteen  years  of  age  to  attend  a  primary  school. 
There  is  a  university  at  Coimbra  and  there  are  at  various  towns 
secondary  and  high  schools.    The  improvement  oif  the  system 
of  government  and  the  increased  prosperity  of  the  people  have 
followed  the  work  of  the  schools.     The  economic,  moral  and 
political  value  of  the  general  diffusion  of  knowledge  among 


SPAIN  AND   PORTUGAL  457 

the  people  has  been  shown  by  the  improvements  in  social  and 
material  conditions. 

Authorities 

Henry   Cofifee :     History  of   the   Conquest  of   Spain   by  the 

Arab  Moors. 
W.  H.   Prescott :     History  of  the  Reign  of  Ferdinand  and 

Isabella. 
W.  H.  Prescott :    History  of  the  Reign  of  Charles  V  of  Spain. 
Gibbon :     Decline  and  Fall  of  the  Roman  Empire. 
Giiizot :     History  of  Civilization. 
Hallam:     Middle  Ages. 
Encyclopaedia  Britannica. 
Continental  Le§;al  History  Series,  vol.  i. 


CHAPTER  XIX 

Denmark^  Sweden  and  Norway 

The  inhabitants  oif  the  Scandinavian  peninsula  and  of  the 
islands  and  peninsula  lying  across  the  water  to  the  south  are 
so  closely  allied  in  blood,  and  their  history  has  been  so  closely 
connected,  that  the  development  of  their  institutions  will  be 
treated  together.  That  they  are  closely  related  to  the  Germans 
is  evident,  though  the  date  of  their  separation  precedes  history. 
Their  earliest  known  organization  differed  from  that  of  the 
Germanic  tribes  in  the  system  of  land  tenure.  The  village 
tenure  in  common  never  obtained  so  far  as  we  are  informed. 
Land  vv^as  treated  as  the  property  of  the  individual  owner. 
Slavery  existed,  though  the  number  of  slaves  was  not  large. 
The  spirit  of  the  people  was  distinctl}^  opposed  to  submission 
to  authority,  and  the  power  to  manage  their  affairs  remained 
in  the  Ixjdy  of  freemen.  Local  affairs  were  determined  in  a 
meeting  of  the  free  men  of  the  district,  and  those  of  the  whole 
country  by  a  general  assembly  of  freemen,  there  being  no  sys- 
tem of  representation.  Before  the  advent  of  written  laws  the 
Swedes  and  Norwegians  had  their  law-men,  who  were  looked 
to  as  repositories  of  the  traditions  of  the  law.  They  recited 
the  laws  to  the  people  in  their  assemblies — Things — and  were 
consulted  in  cases  of  doubt.  The  Scandinavians  first  became 
known  to  the  balance  of  Europe  from  their  incursions  by  sea. 
They  were  navigators  at  an  early  day,  and  their  enterprises 
were  directed  against  all  the  coasts  of  the  continent  and  British 
Isles,  which  they  pillaged  and  laid  waste  in  the  most  ruthless 
manner  from  the  Baltic  to  the  Mediterranean.  No  other  coun- 
try then  produced  such  bold  navigators  and  reckless  warriors. 
They  did  not  engage  much  in  commerce,  but  were  generally 
pirates  and  freebooters.  At  home  they  were  little  less  fierce. 
Courage  and  hardihood  were  the  virtues  most  regarded,  and 
these  seem  to  have  been  possessed  in  an  unusual  degree  even 

458 


DENMARK,  SWEDEN  AND  NORWAY  459 

by  the  women,  some  of  whom  took  part  in  their  expeditions. 
In  early  times  there  were  petty  kings  in  each  district,  chosen 
as  leaders  by  the  free  men,  with  little  real  power  over  their 
followers.  There  was  no  code  of  laws,  but  disputes  were  de- 
termined by  combat  or  by  the  freemen  in  their  assembly  in 
accordance  with  ancient  customs  and  advice  of  their  law- 
men.^ Distinctions  of  wealth  and  leadership  had  developed 
a  nobility  by  the  dawn  of  their  history,  but  without  destroying 
the  authority  of  the  freemen  assembled  in  their  things  over 
all  public  affairs. 

It  is  said  that  Gorm  the  Old,  who  Nourished  between  860 
and  936,  was  the  first  to  extend  his  authority  over  all  Den- 
mark including  Schleswig,  Holstein,  Skania  and  part  of  Nor- 
way. A  little  earlier  Harold  Fairhair  had  subdued  all  the 
petty  kings  in  Norway  and  placed  the  fylkis  or  shires  under  his 
earls  and  the  lierads,  (subdivision  of  the  fylkis),  under  his 
lendermcnn.  The  date  and  extent  of  the  domination  af  the 
early  Swedish  kings  is  so  interwoven  with  the  mythical  that 
it  is  impossible  to  say  much  with  certainty.  Eric,  who  ruled 
in  the  tenth  century,  is  said  to  have  extended  his  power  over 
Denmark,  and  his  son  Olaf,  who  succeeded  him  in  993,  was 
the  first  Christian  king  of  Sweden,  having  been  baptized  about 
A.D.  1000.  These  were  times  of  almost  ceaseless  war,  and 
no  compact  and  efficient  system  of  government  was  established 
by  any  of  them.  The  name  of  Cnut,  the  Dane,  stands  out 
prominently  in  history  because  of  his  conquests  in  England 
about  1018.  He  extended  his  power  over  Norway  also  and 
into  Sweden.  Tradition  mentions  earlier  rulers  over  the  Scan- 
dinavian races,  the  greatest  of  whom  was  Odin,  reputed  a 
Scythian  chief,  who  extended  his  power  from  his  native  land 
in  the  Russian  steppes  to  Sweden  and  Norway,  and  introduced 
U)  the  people  the  religion  and  institutions  of  his  ancestors.  His 
kingdom  is  said  to  have  included  not  only  all  Denmark,  Swe- 
den and  Norway  but  much  of  the  country  lying  along  the  line 
of  his  march  from  his  native  land.  There  are  many  points  of 
similarity  in  the  customs  of  the  pagan  Scandinavians  and  those 
of  the  ancient  Scythians,  and  there  appears  good  ground  for. 

^  Continental  Legal  History  Scries,  Vol.  i,  p.  535. 


46o  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

believing  that  they  were  carried  into  the  north  by  Scythian  in- 
vaders. ()(hn,  the  leader  seems  to  have  been  translated  into 
Odin,  the  god  of  warriors,  and  to  have  l)ecome  the  principal 
deity  of  northern  nations,  lie  and  Thor,  first  l)orn  son  of 
Odin  and  brigga,  were  the  leading  deities  worshipped,  and 
not  only  animals  but  human  beings  were  sacrificed  to  propitiate 
them.  It  was  the  fashion  of  northern  rulers  to  trace  descent 
from  Odin  and  to  fortify  their  claims  to  authority  by  the 
superstitious  veneration  for  the  supposed  gods.  Odin  is  said 
to  have  established  his  power  and  residence  in  Sweden  about 
70  B.C.,  and  the  dynasty  he  established  to  have  continued  till 
630  A.D.  The  reigns  of  Odin  and  his  immediate  successors 
are  described  in  the  traditions  as  peaceful  and  prosperous  and 
are  accepted  as  a  golden  age  of  prosperity.  Little  can  be  told 
with  any  fair  degree  of  certainty  of  those  early  times. 

The  system  of  laws  prevailing  throughout  the  Scandinavian 
countries  in  the  time  of  Cnut  imposed  fines,  definitely  fixed  for 
each  offense  from  murder  down,  graded  according  to  the  rank 
of  the  injured  party.  For  an  injury  to  the  person  of  a  high 
nobleman  the  fine  was  twelve  times  as  much  as  in  case  of  an 
ordinary  freeman.  For  theft  the  fine  was  generally  triple 
value  oif  the  stolen  article.  The  modes  of  trial  allowed  the 
accused  to  clear  himself  by  the  oaths  of  compurgators,  swear- 
ing that  they  believed  him  innocent.  Judicial  combat  was 
a  recognized  mode  of  trial,  as  were  those  by  ordeal  of  fire 
or  water.    Trial  by  jury  was  also  allowed. 

On  the  death  of  Cnut  his  dominions  were  divided  between 
his  three  sons.  The  history  of  the  following  century  is  filled 
with  the  wars  of  rival  claimants  of  kingly  power.  While  these 
claimants  fought,  Wendish  pirates  pillaged  the  people,  who  for 
their  protection  entered  into  an  association  for  their  mutual 
defense,  built  ships,  manned  them  and  captured  many  of  the 
pirates.  Here  was  the  spectacle  of  war  and  discord  among 
princes  and  an  assumption  oif  the  function  of  protecting  them- 
selves from  external  foes  by  the  people.  After  long  and  deso- 
lating civil  war  Valdemar  overcame  his  rivals.  Prior  to  his 
reign  all  freemen  had  been  permitted  to  come  to  the  national 


.DENMARK,  SWEDEN  AND  NORWAY  461 

council  armed,  but  in  his  time  the  clergy  and  the  nobles  took 
away  this  privilege,  and  the  peasantry  of  Denmark  and  Sweden 
lost  most  of  their  political  rights. 

Valdemar  II  of  Denmark  made  conquests  in  the  east  but  was 
■unable  to  hold  them,  and  the  city  of  Lubec  succeeded  in  freeing 
itself  from  his  rule.  After  the  loss  of  much  of  his  foreign 
possessions  Valdemar  caused  a  general  survey  to  the  made  oif 
his  kingdom.  The  provinces  were  divided  into  Episcopal  dio- 
ceses, which  were  subdivided  into  parishes  and  small  districts, 
from  each  of  which  a  fixed  contribution  of  men  and  ships  for 
the  defense  of  the  country  was  required.  To  remedy  the  con- 
fusion in  the  law  occasioned  by  the  charters  of  cities,  by  which 
they  had  been  granted  the  right  to  administer  the  law  in 
their  own  courts,  the  royal  guilds,  the  claims  of  the  clergy  of 
exemption  from  secular  power  and  the  study  of  the  Roman 
civil  law,  Valdemar  convened  in  1240  a  national  assembly,  at 
which  was  promulgated  what  was  intended  as  a  code  of  laws 
for  the  whole  kingdom,  called  the  Jutland  law.  By  this  time 
feudalism  had  made  its  way  into  Denmark,  the  local  assemblies 
of  freemen  were  no  longer  held,  but  were  superseded  by  the 
A  del-Ting  or  Herredag,  an  assembly  to  which  only  the  princes, 
prelates  and  nobility  were  admitted.  The  peasantry  had  been 
generally  compelled  to  place  themselves  under  some  feudal  lord 
and  thereby  lose  their  indei>endence.  The  national  diet  was 
convened  annually  at  Nyborg.  During  its  recess  the  govern- 
ment was  administered  by  the  king  and  his  council,  composed 
of  the  leading  nobles  and  officers  of  the  kingdom.  The  marked 
change  which  had  occurred  consisted  in  the  development  of  a 
class  of  land  holding  nobles,  who  shared  political  power  with 
the  king  to  the  exclusion  of  the  great  body  of  the  freemen 
who  formerly  met  in  the  Lands  Ting. 

On  the  death  of  Valdemar  II  Eric  succeeded  and  fought 
with  his  brothers  who  refused  homage  for  their  fiefs,  and 
then  led  an  expedition  into  Esthonia :  on  returning  from  which 
he  was  assassinated.  Christopher's  reign  was  noted  for  a 
controversy  with  the  church,  resulting  in  an  interdict  against 
his  kingdom  for  seizure  and  imprisonment  of  the  bishop  of 
Lund.     Eric  VII,  Grippling,  had  ])loody  wars,  in  which  many 


462  EVOLUTION  OF  GOVERNMENTS  \^B  LAWS 

of  his  subjects  perished  in  a  contest  with  the  (hike  of  Schleswig 
and  his  alhes  over  the  possession  of  the  crown,  foHovved  by 
further  controversy  with  the  church  over  the  right  to  control 
appointments  to  clerical  oftices,  and  was  at  last  murdered  in 
his  chamber  (1287).  During  his  reign  the  nobles  extortetl 
from  him  a  charter  defining  their  privileges  and  the  limits  df 
royal  authority,  which  thereafter  was  renewed  by  succeeding 
monarchs.  He  also  granted  charters  to  several  towns  and 
made  general  regulations  for  municipal  bodies.  Eric  VIII 
warred  with  Norway,  where  the  murderer  of  his  father  re- 
ceived protection,  and  the  controversy  with  the  papal  power 
was  renewed.  Then  followed  a  barbarous  warfare  with  his 
younger  brother  over  his  right  to  certain  fiefs. 

Christopher  II  on  his  election  by  the  diet  in  13 19  was  re- 
quired to  sign  a  declaration;  That  the  bishops  and  all  other 
members  of  the  Holy  Church  should  freely  enjoy  their  rights 
and  liberties,  property  and  vassals,  as  formerly,  and  should  be 
entirely  exempted  from  taxes  and  the  secular  jurisdiction: 
That  no  ecclesiastical  person  should  be  arrested,  exiled  or 
deprived  of  his  goods,  without  the  Pope's  bull,  if  a  bishop, 
and  if  an  inferior  clerk,  only  by  the  regular  sentence  of  his 
canonical  judge:  That  the  chiefs  should  have  feudal  juris- 
diction over  their  estates  to  the  extent  of  amercing  in  small 
penalties  according  to  the  custom  of  each  province,  and  that 
the  king  should  not  make  war  without  the  advice  and  consent 
of  the  prelate  and  principal  men  of  the  kingdom:  That  the 
burghers  should  enjoy  their  freedom  and  not  be  subject  to 
any  new  toll  or  tax  without  consent  of  the  diet :  That  the 
merchants  should  be  repaid  the  sums  borrowed  from  them 
by  the  king  or  his  bailift's :  That  no  impost  should  be  laid 
on  the  free  peasantry  contrary  to  the  established  laws  and 
customs :  That  a  parliament  should  be  held  annually  at 
Viborg:  That  no  man  should  be  imprisoned  or  deprived  of 
life  or  property  without  public  trial  and  conviction  before  the 
proper  courts  and  with  the  right  of  appeal  to  the  highest  trib- 
unal :  That  plundering  shipwrecked  vessels  should  be  pun- 
ished :  That  no  law  should  be  enacted  except  by  parliament, 
and  that  the  king  alone,  with  the  advice  of  the  nobles  and  pre- 


DENMARK,   SWEDEN   AND  NORWAY  463 

lates,  should  have  power  to  change  the  above  rules.  Christo- 
pher lavished  grants  of  lands  on  his  favorites.  He  was 
rewarded  for  his  generosity  with  revolts  and  driven  from  his 
kingdom,  which  he  vainly  ifoiight  to  recover  and  died  after 
fourteen  years  of  turmoil.  The  king  had  lost  his  power.  The 
turbulent  feudal  lords  and  the  rising  towns  of  the  Hanseatic 
league  dominated  the  country.  His  death  was  followed  by  a 
period  of  turmoil.  Valdemar  IV,  who  after  some  delay  was 
elected  king,  had  both  civil  and  foreign  wars  which  brought 
misery  on  the  people. 

During  the  period  we  have  just  considered  the  course  of 
events  in  Norway  was  far  from  peaceful.  Sverre  in  1202 
after  a  long  struggle  took  the  throne  from  the  youthful  Mag- 
nus V.  Having  gained  the  crown  by  the  sword,  he  had  to 
fight  to  keep  it.  Having  incurred  the  displeasure  of  the  Pope, 
his  kingdom  was  laid  under  an  interdict.  He  died  after  twen- 
ty-five years  of  strife.  After  three  brief  reigns  came  that  of 
Hakon,  who  also  had  to  fight  to  maintain  his  authority.  His 
last  important  undertaking  was  a  disastrous  expedition  to  Scot- 
land. ]\Iagnus  VT  became  king  in  1263.  He  granted  charters 
to  Bergen  and  Trondheim  and  made  regulations  for  their  mu- 
nicipal affairs,  trade  guilds  and  fraternities.  He  also  compiled 
a  general  code  of  civil  and  criminal  laws,  which  was  accepted 
by  the  people  assembled  in  the  Gtda  Ting  in  1274.  It  provided 
for  an  annual  Law  Ting  at  each  chief  town  of  the  kingdom, 
presided  over  by  a  judge  and  attended  by  a  panel  of  jurors. 
Trial  by  battle  and  ordeal  had  already  been  abolished,  and  two 
witnesses  were  required  to  establish  a  crime.  Compurgators 
were  still  allowed.  The  kingdom  was  again  divided,  as  for- 
merly, into  marine  districts,  each  of  which  was  required  to 
furnish  its  quota  of  men  rmd  ships.  Beacon  stations  were 
established  on  the  heights,  by  which  signals  could  be  passed 
from  point  to  point  in  case  of  invasion.  Erik  married  the 
daughter  of  Alex  III  of  Scotland,  and  involved  his  country  in 
a  fierce  and  profitless  war  with  the  Danes  in  defense  of  the 
murderers  of  Eric  Crippling.  Hakon  made  war  on  the  king 
of  Sweden  to  avenge  the  murder  of  his  son-in-law.  As  a  result 
Magnus  Senek  was  i)laced  on  the  Swedish  throne  and  after- 
ward succeeded  to  that  o(f  Norway  also. 


464  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

111  Sweden  slavery  was  abolished  by  King  Magnus  in  1335. 
Margaret  was  chosen  their  first  queen  by  the  i^anes  and  Nor- 
wegians. War  followed  with  Albert  of  Sweden,  and  he  was 
taken  prisoner.  In  1397  there  was  assembled  at  Calmar  dele- 
gates from  the  diets  of  Denmark,  Sweden  and  Norway,  who 
joined  in  choosing  Eric  king  of  the  three  countries.  Articles 
of  union  were  agreed  on,  by  which  the  three  countries  became 
united  under  the  same  sovereign  and  his  male  issue,  choice  of 
sons  to  be  made  by  the  representatives  of  the  kingdoms,  but 
each  kingdom  was  to  be  governed  by  its  own  laws.  The  Ilan- 
seatic  league,  then  flourishing,  was  confirmed  in  its  privileges 
in  the  towns  of  the  three  kingdoms.  Eric  entered  into  war 
over  Schleswig,  which  at  length  involved  the  German  emperor 
and  the  intervention  of  the  Pope.  He  made  a  pilgrimage  to 
the  Holy  Land,  leaving  his  wife  as  regent.  He  had  wars  with 
the  Hanse  towns,  which  wasted  the  country  and  finally  resulted 
in  a  treaty  confirming  the  commercial  privileges  of  the  league. 
The  Swedes  rebelled  against  Eric's  misrule  and  civil  war  fol- 
lowed, which  was  terminated  through  the  intercession  of  the 
bishops,  who  this  time  were  peacemakers.  Eric  provoked  re- 
volt and  war  again  ensued,  followed  by  another  congress  at 
Calmar,  at  which  the  election  df  a  successor  to  the  throne  was 
confided  to  a  college  of  one  hundred  and  twenty  delegates, 
forty  from  each  state,  to  include  representatives  of  the  pre- 
lates, judges,  burgomasters  and  free  peasants.  Complaints 
against  Eric's  rule  finally  resulted  in  the  choice  of  Christopher 
as  his  successor,  and  Eric  became  a  pirate. 

The  peasants  of  Jutland  revolted  against  the  high  taxes  and 
oppression  of  the  nobles,  but  their  resistance  was  overcome  in 
the  usual  manner.  Christopher  made  unsuccessful  war  on  the 
Hanse  towns.  Christian  was  chosen  king  by  the  Danish  nobles 
and  then  by  the  Norwegians,  but  Knutson  was  named  by  the 
Swedes,  each  acting  separately.  War  followed ;  Knutson  was 
defeated  and  driven  out  and  Christian  recognized  as  king  of 
Sweden.  Another  revolt  headed  by  the  archbishop  of  Upsala 
again  placed  Knutson  on  the  throne,  from  which  he  was  again 
deposed.  On  his  death  Sten  Sture  received  the  support  of  the 
national  diet  oif  Sweden  and  defeated  the  Danes  in  a  great 


DENMARK,  SWEDEN   AND  NORWAY  465 

battle.  In  1478  the  university  of  Copenhagen  was  founded 
and  that  of  Upsala  in  Sweden  soon  afterward. 

John,  having  been  chosen  by  the  Danes  and  Norwegians, 
invaded  Sweden  to  enforce  submission  there  and  finally  ob- 
tained their  recognition.  In  an  attempt  to  subjugate  Deth- 
marschen  he  met  with  a  signal  defeat  by  the  free  peasants,  in 
which  great  numbers  of  the  Danish  nobles  were  killed.  Re- 
volts again  occurred  in  Sweden,  and  his  authority  was  resisted 
during  the  balance  of  his  reign.  Norway  also  rebelled  but  was 
reduced  to  submission.  In  his  contests  with  the  Swedes  and 
their  allies,  the  Hanse  towns,  the  war  degenerated  into  pil- 
laging expeditions.  The  barbarity  exhibited  was  extreme. 
Christian  II  came  to  the  throne  in  1573.  The  Swedes  resisted 
his  authority,  and  he  called  to  his  aid  the  clergy  and  the  sol- 
diers. Under  the  name  of  authority  and  religion  the  grossest 
barbarities  were  committed.  Having  overcome  the  opposition, 
partly  by  force  and  partly  by  promise,  he  was  crowned  at 
Stockholm.  At  the  close  of  the  court  festivals  he  seized  the 
leaders  who  had  opposed  him,  and  to  whom  he  had  solemnly 
promised  amnesty,  and  on  the  demand  of  a  churchman  for 
justice  against  his  enemies  he  turned  them  over  to  an  ecclesias- 
tical court  for  trial.  They  were  condemned  the  next  day,  and 
on  the  pretense  that  he  as  king  could  not  shield  them  from 
punishment  for  heresy,  on  Nov.  8th,  1520  a  great  number  of 
the  leading  men  of  the  kingdom  were  butchered.  The  Pope's 
agent  was  encouraged  in  his  trade  of  selling  indulgences,  from 
which  he  realized  large  sums  from  all  factions. 

Gustavus  Vasa,  son  of  one  of  the  murdered  men,  after  wan- 
dering from  place  to  place  took  refuge  with  the  poor  but  free 
Dalecarlian  mountaineers,  whom  he  incited  to  a  revolt  which 
gained  in  force  till  with  the  aid  df  the  Hanseatic  League  the 
Danes  were  driven  from  Sweden.  In  Denmark  Christian  ex- 
cited the  hostility  of  the  nobles  by  forbidding  the  sale  of  serfs 
and  allowing  them  to  change  their  masters,  by  prohiliiting 
wreckers  from  seizing  shipwrecked  goods  and  in  lieu  appoint- 
ing bailiffs  to  save  and  return  them  t(^  the  owners  on  payment 
of  salvage.  The  nobles  revolted  and  Christian  left  the  king- 
dom. Gustavus  Vasa  was  then  elected  to  the  throne  of  Sweden 
by  the  diet  and  became  the  founder  of  a  famous  dynasty. 


466  EVOLUTION  OF  GOVERNMENTS  AMD  LAWS 

Frederick  succeeded  to  the  thrones  of  Denmark  and  Nor- 
way. Alfter  a  time  the  dethroned  Christian  succeeded  in 
raising  a  revolt  in  Norway  and  involving  the  people  in  war, 
but  he  was  taken  prisoner  and  spent  the  next  twelve  years  of 
his  life  in  a  dung-eon  of  the  castle  of  Sonderborg,  and  then 
was  removed  to  that  of  Kallundborg.  Christian  III  came  to 
the  Danish  and  Norweigan  throne  in  1533.  The  reformation 
took  early  hold  in  Denmark,  and  religious  strife,  revolts  of  the 
peasantry  and  many  other  internal  disorders  occurred.  Chris- 
tian adopted  the  reformed  faith,  took  away  all  temporal  power 
from  the  clergy  and  confiscated  the  church  property.  The 
blow  at  the  clergy  was  accompanied  by  a  confirmation  of  the 
privileges  of  the  lay  nobility.  Sweden  also  threw  off  its  sub- 
mission to  the  sway  of  the  clergy  and  took  side  with  Luther. 
Under  Gustaviis  Vasa  Sweden  enjoyed  a  degree  of  peace  and 
prosperity  it  had  not  known  ifor  many  generations.  He  died  in 
1560  and  was  succeeded  by  Eric  his  son.  His  rule  was  in 
striking  contrast  to  that  of  his  father.  He  was  fickle,  wasteful 
and  plunged  into  needless  \vars  at  home  and  abroad,  -from 
which  the  people  suffered  more  than  the  usual  miseries.  At 
last  they  rose,  deposed  him  and  elected  John  in  his  place  in 
1568,  who  had  war  with  Denmark  and  with  Russia,  from 
which  no  good  resulted.  Frederick  H  of  Denmark  made  cruel 
war  on  the  valiant  Dithmarschen  peasants,  whom  he  attacked 
with  an  overwhelming  force  and  ruthlessly  slaughtered.  Then 
followed  long  and  wasting  war  with  Sweden,  the  pretext  for 
which  was  the  wearing  by  the  Danish  monarch  in  his  coat  of 
arms  of  the  triple  crown,  implying  sovereignty  over  Sweden, 
the  independence  of  which  had  been  established.  The  war 
ended  with  the  loss  of  his  crown  by  Eric  of  Sweden.  The 
peace  negotiated  with  King  John  did  not  last  and  more  fight- 
ing followed  till,  weary  oif  war,  a  new  treaty  was  made. 
Frederick  was  a  Lutheran  and  persecuted  all  of  other  faiths 
with  the  zeal  and  intolerance  which  characterized  the  times. 
Sigmund,  son  of  John  of  Sweden,  having  l>een  chosen  King  of 
Poland,  succeeded  on  the  death  of  his  father  to  that  of  Swe- 
den. He  was  a  Catholic  and  his  subjects  Protestants.  Duke 
Charles,  son  of  Gustavus  Vasa,  was  made  regent.     Religious 


DENMARK,  SWEDEN   AND  NORWAY  467 

differences  resulted  in  ci\il  war.     Sigmund  was  deposed  and 
Charles  made  king. 

Christian  IV  ascended  the  Danish  throne  at  the  age  of 
twelve.  After  reaching  his  majority  he  took  an  active  interest 
in  promoting  good  government,  especially  in  Norway,  and 
made  a  voyage  around  the  north  cape  into  the  White  Sea. 
Then  disputes  with  Charles  of  Sweden  and  war  followed, 
which  was  continued  after  the  death  olf  Charles  by  his  son, 
Gustavus  Adolphus.  After  great  suffering  by  both  parties  a 
peace  was  concluded.  Gustavus  waged  successful  war  against 
Poland,  in  which  he  gained  great  glory  and  great  numbers  of 
his  people  lost  their  lives.  At  a  meeting  of  the  Saxon  states 
at  Lauenburg  in  1625,  while  the  Thirty  Years'  war  was  in 
progress,  Gustavus  was  chosen  captain  general  of  the  confed- 
erate army  of  Danes,  Germans,  Scotch,  English  and  Swedes. 
His  brilliant  career  in  that  memorable  war  ended  with  his  life 
in  1632  on  the  hard  fought  field  of  Lutzen.  As  a  result  of  this 
war  the  power  and  territory  of  Sweden  were  greatly  increased, 
though  at  a  fearful  cost  df  life  and  property  to  the  i>eople. 

In  Denmark  power  and  landed  property  had  steadily  cen- 
tered in  the  hands  of  a  few,  till  the  national  assembly  was  no 
longer  convened,  and  a  few  great  lords  dominated  in  the  coun- 
cils of  the  state.  In  1660  Frederick  convened  the  national  diet, 
to  which  the  nobles,  the  clergy  and  deputies  from  the  towns 
were  summoned,  but  there  was  no  longer  a  free  peasantry  to 
be  called.  Norway  was  not  called  on  for  representatives.  At 
this  diet  the  crown  was  made  hereditary,  and  the  king  absolved 
from  the  ancient  limitations  of  his  authority  in  favor  of  the 
nobilitv.  The  great  lords  were  forced  to  swear  ifealty  to  the 
hereditary  and  unlimited  monarch.  This  was  one  of  the  most 
remarkable  revolutions  in  history  and  completely  changed  the 
character  of  the  Danish  government,  from  one  in  which  each 
king  had  been  forced  at  his  accession  to  power  to  swear  to 
observe  the  very  extensive  privileges  of  the  nobility,  leaving 
him  little  more  than  a  nominal  ruler,  to  an  absolute  monarchy 
in  which  the  king  engrossed  all  executive,  legislative  and  ju- 
dicial ]K>\\crs  and  was  raised  abo\'f  ibc  law,  save  that  the  order 
of  succession  to  the  throne,  which  the  king  was  authorized  t(» 


468  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

establish,  could  not  thereafter  be  changed.  This  gave  to  the 
king-  power  to  crush  the  great  nobles,  whose  counsel  he  was  no 
longer  required  to  take,  and  to  fill  all  offices  with  persons  of 
his  own  selection,  devoted  to  his  interests.  The  motive  for  the 
change  influencing  the  clergy  and  lower  orders  in  the  diet  was 
to  obtain  relief  from  the  tyranny  of  the  oligarchy,  who  were 
exempt  from  public  burdens  while  owning  a  great  share  olf  the 
land.  The  union  of  the  multitude  in  support  of  a  single  head 
of  the  state  in  order  to  overthrow  an  obnoxious  oligarchy  is 
not  un]>recedented,  but  no  other  instance  is  recalled  where 
absolute  hereditary  power  has  been  deliberately  conferred  in  a 
time  of  i>eace.  Christian  V,  soon  after  coming  to  the  Danish 
throne,  took  advantage  of  the  war  in  which  Charles  XI  of 
Sweden  had  engaged  with  the  elector  of  Brandenburg  to  attack 
the  now  most  dreaded  foe  of  Denmark.  The  Danes  and  their 
allies  were  at  first  successful  by  sea  and  land,  but  the  youthful 
Charles  at  last  took  the  field  and  defeated  them.  After  many 
battles  with  varying  fortunes  a  peace  was  concluded,  which 
left  l)oth  parties  with  the  same  possessions  as  at  the  beginning 
of  the  war. 

In  Sweden  Charles  convoked  a  diet  in  1680  for  the  purpose 
of  remodeling  the  government,  as  a  result  of  which  a  new 
board,  called  the  Grand  Commission,  was  established  with 
power  to  inquire  into  the  transactions  of  the  ministers  and  pun- 
ish the  usurpations  of  the  senators.  Steps  were  also  taken  to 
recover  grants  of  royal  domains  from  the  great  nobles,  to 
whom  they  had  passed  by  grant  or  mortgage,  on  repayment 
of  the  original  price  paid  the  crown  for  them.  Another  diet, 
convened  the  following  year,  gave  the  king  authority  to  change 
the  constitution.  This  change  was  promoted  by  the  same  in- 
fluences as  those  which  changed  the  Danish  constitution.  In 
1693  an  act  was  passed  which  in  terms  made  the  king  absolute 
and  authorized  him  to  govern  the  realm  according  to  his  will 
and  pleasure  without  being  accountable  to  any  earthly  power. 

Charles  XTI,  1697,  was  a  minor  of  fiifteen  years  at  his 
father's  death,  but  notwithstanding  the  will  of  his  father, 
which  extended  his  minority  to  eighteen,  in  six  months  he 
assumed  the  exercise  of  the  unlimited  kingly  powers.     He  was 


DENMARK,  SWEDEN  AND  NORWAY  469 

soon  involved  in  war  with  a  combination  formed  by  Denmark, 
Saxony  and  Prussia.  He  met  this  formidable  array  with  such 
marvelous  courage,  energy  and  success,  as  to  challenge  the 
admiration  of  all  Europe  and  raise  him  to  the  tirst  rank  of 
military  heroes.  Not  waiting  for  the  allies  to  combine  their 
forces,  he  at  once  assumed  the  offensive,  attacked  and  crushed 
Denmark  first,  then  sailed  over  the  Baltic,  landed  at  Pernau 
on  the  Gulf  of  Riga,  attacked  the  poorly  equipped  and  undisci- 
plined Russians  and  destroyed  army  after  army,  far  exceeding 
his  own  in  numbers.  Having  disposed  of  the  Russian  armies, 
he  turned  upon  the  Saxons  and  passing  through  Lithuania  he 
entered  Poland,  took  Warsaw  and  Cracow,  deposed  the  Saxon 
Augustus  and  caused  the  election  of  Stanislaus  in  his  place. 
Thence  he  marched  into  Saxony  and  the  imperial  domains. 
Augustus  was  forced  to  sue  for  peace  and  make  such  terms  as 
the  victorious  Charles  saw  fit  to  impose.  These  required  the 
renunciation  of  the  crown  of  Poland  and  the  abrogation  of 
his  treaty  with  the  Czar.  After  resting  a  while  in  Saxony, 
during-  which  he  drilled  and  perfected  his  army,  Charles  en- 
tered on  the  task  of  invading  Russia  and  overthrowing  the 
Czar.  Peter  had  not  been  idle,  but  had  profited  by  the  bitter 
experience  of  former  defeats  and  devoted  his  attention  to  the 
improvement  of  his  army.  Charles  advanced  but  encountered 
stubborn  resistance  and  an  exceptionally  severe  Russian  winter. 
Instead  of  pushing-  on  toward  Moscow,  he  turned  to  the  south 
and  passed  through  the  Ukraine  to  join  iforces  with  the  Cos- 
sack chief,  Mazeppa,  whom  he  expected  to  join  him  with  a 
force  of  30,000.  Instead  of  Cossacks  he  was  met  by  Russians. 
After  suffering  heavy  losses  from  the  severity  of  the  weather 
and  the  want  of  supplies,  as  well  as  from  frequent  engage- 
ments, in  the  summer  of  1709  he  again  attempted  to  force  his 
way  to  Moscow  with  the  remnant  of  his  once  splendid  army. 
Peter  met  him  at  Pultowa  on  July  8  with  70,000  men,  and, 
though  he  fought  obstinately,  overwhelming  numbers  decided 
the  day  and  the  Swede's  army  was  destroyed.  With  a  small 
band  of  horsemen  Charles  made  his  escape  into  the  Turkish 
domains,  where  he  remained,  supported  1)y  an  allowance  (from 
the  sultan,  whom  he  sought  to  induce  to  raise  an  army  with 


470  F.VOT.ITTTON  OF  GOVERNMENTS  AMD  LAWS 

which  to  renew  the  contest.  Having  played  tlie  role  of  a 
most  troublesome  guest  to  the  Turks  till  Oct.  1714,  Charles,  in 
company  with  only  two  officers,  started  back  to  the  north, 
reaching  Stralsund  safely  on  No\\  21.  lie  was  most  enthu- 
siastically received  by  the  army,  but  his  presence  was  not 
sufficient  to  enable  the  small  Swedish  garrison  to  resist  the 
combined  besieging  army  of  Danes  and  Prussians.  He  suc- 
ceeded in  escaping  in  a  boat,  just  as  the  town  capitulated,  and 
made  his  way  across  the  Baltic  into  Sweden.  Still  bent  on  con- 
quest, he  raised  a  new  army,  with  which  he  invaded  Norway. 
On  his  second  invasion  of  that  country  at  the  siege  of  Fred- 
erickhall  on  Dec.  11,  1718,  he  was  struck  by  a  ball  and  killed. 
The  career  of  Charles  affords  a  striking  example  of  the  mis- 
fortune it  is  to  a  kingdom  to  have  a  great  military  hero  for  a 
king.  It  also  illustrates  the  strange  infatuation,  which  causes 
the  multitude  to  applaud  and  follow  a  leader  who  marches  them 
to  destruction,  so  long  as  he  succeeds  in  gaining  battles  and  in- 
flicting greater  misery  on  his  enemies  than  his  own  troops 
suffer.  Had  Charles  been  content  to  make  peace  after  his  early 
w\ars,  which  though  carried  on  in  the  enemies'  country  were 
really  defensive,  he  might  have  claimed  to  be  a  protector  of 
his  people,  but  his  insane  thirst  (for  conquest  caused  him  to 
drain  his  country  of  men,  to  be  killed  or  maimed  in  war  or  sold 
into  slavery  as  prisoners.  His  early  campaigns  brought  1)Ooty 
and  wealth,  but  loss,  disaster  and  poverty  alone  resulted  from 
the  later  ones.  The  great  mass  of  men  who  followed  him  to 
his  wars  never  returned  but  met  death  or  slavery.  The  people 
at  home  endured  the  misery  of  the  loss  of  friends,  the  sharp 
pinch  of  poverty  and  distress  resulting  from  the  destruction 
of  war.  Like  the  barbarous  idol  worshippers,  the  Swedes 
continued  to  worship  their  hero  and  to  furnish  him  victims 
by  tens  of  thousands.  Rejoicing  in  the  early  days  of  success  in 
the  destruction  and  misery  he  and  his  followers  caused  others, 
they  at  last  felt  a  ifull  measure  of  it  themselves.  This  is  in 
the  very  nature  of  war,  yet  savage  man  still  worships  the  war 
god  in  Christian  churches,  as  well  as  in  pagan  grove  or  temple, 
and  still  immolates  on  his  altar  the  bravest  and  strongest  of 
the  youths,  leaving  the  perpetuation  of  the  race  to  those  physi- 


DENMARK,   SWEDEN  AND  NORWAY  47i 

cally  weaker  and  less  courageous.  By  this  system  the  race  of 
the  peaceful,  though  weak  and  defective,  is  preserved  and 
propagated,  while  the  more  warlike  element  is  destroyed. 

Ulrica,  younger  sister  of  Charles,  was  chosen  by  the  states 
to  be  his  successor,  but  she  was  required  to  renounce  all  claims 
to  despotic  power  and  all  hereditary  right  to  the  crown.  A  new 
constitution  in  forty  articles  was  framed,  which  provided 
among  other  things;  that  all  offices  of  trust  or  profit  should 
be  tilled  by  the  native  nobility;  that  all  taxes  should  be  ap- 
proved by  the  assembly ;  that  the  senate  should  manage  public 
afifairs  in  the  absence  of  the  sovereign  and  in  case  of  a  vacancy, 
and  that  cities  and  towns  were  to  be  confirmed  in  their  corpor- 
ate rights.  This  constitution  was  accepted  by  the  queen.  The 
policy  of  the  new  reign  was  to  make  peace,  and  this  after  some 
delay  was  accomplished,  but  with  large  concessions  oif  territory 
to  Russia.  Ulrica  soon  abdicated  and  asked  the  election  of  her 
husband  Frederick  in  her  stead.  This  was  done  in  1720  with 
a  further  extension  of  the  guarantees  of  the  constitution.  The 
king  might  propose  laws,  but  the  legislative  power  was  vested 
in  the  states.  Sweden  enjoyed  the  blessings  of  peace  till  1741, 
when  bad  counsel  prevailed  in  the  diet,  and  war  was  again 
declared  against  Russia.  In  the  campaign  which  followed  the 
advantage  was  with  the  Russians,  and  the  Swedes  lost  Finland 
as  the  price  of  peace.  For  blood  and  treasure  wasted  there  was 
no  return  but  humiliation. 

In  Frederick  IV,  Christian  VI  and  Frederick  V,  Denmark 
found  peaceful  rulers,  who  devoted  their  energies  to  the  im- 
provement of  the  condition  of  their  sul^jects,  but  were  yet 
without  power,  and  perhaps  lacking  in  disposition,  to  do  justice 
to  the  peasants  and  poor,  who  still  submitted  to  the  grinding 
oppression  of  the  nobles. 

Sweden  again  became  involved  in  war  with  Frederick  of 
Prussia,  T755  to  1762,  but  the  drain  of  men  and  resources 
was  not  so  severe  as  in  her  former  g^reater  struggles.  Gust- 
avus  III  ascended  the  throne  of  Sweden  in  T771.  He  delayed 
his  coronation  until  he  could  make  sure  of  the  fidelity  of  the 
soldiers,  when  he  threw  off  the  mask  and  refused  to  recognize 
the  constitution,  under  which  his  predecessor  had  been  sub- 


472  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

jected  to  the  dictation  of  the  iiobihty,  and  assumed  dictatorial 
power.  The  diet  was  summoned,  and  with  the  army  at  his 
back  Gustavus  dictated  terms  to  them  and  required  the  mem- 
l)ers  to  swear  to  support  his  constitution,  which  contained 
lifty-seven  articles  and  placed  all  executive  power  in  the  king. 
The  diet  was  still  retained,  composed  of  the  four  orders,  but 
the  king-  ceased  to  be  dependent  on  its  will. 

Christian  VII,  a  weak,  na/row  minded,  dissolute  son  of  a 
very  worthy  man,  who  had  been  a  good  king,  came  to  the 
Danish  throne  in  1766.  His  accession  was  but  another  illus- 
tration of  the  evil  of  transmitting  power  by  inheritance,  and  of 
the  certainty  that  good  men  will  sometimes  have  bad  sons. 
Christian  traveled  abroad  and  brought  home  favorites,  chief 
among  whom  was  Struensee,  whom  the  king  found  practising 
medicine  at  Altona  and  took  into  such  favor  that  he  soon  ap- 
pointed him  prime  minister.  His  success  in  also  gaining  the 
confidence  df  the  young  queen  led  to  his  destruction.  He  was 
arrested  and  tried,  if  a  proceeding  before  a  commission  of  his 
bitter  enemies  who  instigated  the  prosecution  can  be  dignified 
by  that  name,  and  condentned  to  death,  which  was  inflicted  in 
1772.  From  this  time  till  1784,  when  the  king's  son  Frederick 
was  associated  with  him  and  l^ecame  the  actual  ruler,  the  queen 
dowager  administered  the  government,  though  in  Christian's 
name.  The  young  prince  displayed  unexpected  talents  and  vir- 
tues. Through  the  stormy  period  of  the  French  revolution 
and  the  ensuing  wars  he  succeeded  in  maintaining  peace  till 
1 80 1,  when,  having  joined  Russia  and  Sweden  in  an  alliance 
to  protect  their  commerce  on  the  seas  against  searches  and 
seizures  by  Great  Britain,  the  Danish  fleet  was  defeated  before 
Copenhagen  with  heavy  loss  of  men  and  ships.  This  defeat 
was  followed  by  a  disruption  of  the  coalition  and  a  change  of 
policy  hostile  to  France.  In  Sweden  Gustavus  III  proceeded  to 
rule  without  summoning  the  diet,  till  impelled  to  do  so  in 
1772  in  consequence  of  a  memorial  of  the  nobles.  He  merely 
made  them  a  speech  and  dissolved  the  diet.  In  1787  he  joined 
the  Turks  in  waging  war  on  Russia,  but  officers  and  men  re- 
fused to  go  out  of  the  kingdom  to  wage  an  ofifensive  war, 
which  the  national  diet  had  not  sanctioned,  and  his  expedition 


DENMARK,   SWEDEN  AND   NORWAY  473 

into  Finland  ifailed.  The  diet  was  afterward  convened,  and 
Gustavus  proposed  a  change  in  the  constitution,  conferring  on 
the  king  the  power  to  declare  war  and  make  peace.  To  this 
the  clergy,  burg;hers  and  peasant  orders  assented,  but  the 
nobles  opposed  it.  Thereupon  Gustavus  caused  the  arrest  of 
the  refractoiy  nobles,  recognized  Levenhaupt,  president  of  the 
nobility,  as  authorized  to  give  assent  on  their  behalf,  and  he 
having  affixed  his  signature  to  the  act,  it  was  treated  as  duly 
concurred  in  by  all  the  orders.  The  king-  then  abolished  the 
senate  and  in  its  place  appointed  a  council  divided  into  two 
departments,  one  composed  of  six  nobles  and  six  commoners 
constituted  the  supreme  judicial  tribunal,  the  other  of  eight 
nobles  and  four  commoners  had  cognizance  of  minor  matters. 
The  war  with  Russia  was  resumed  and  several  bloody  battles 
followed,  but  on  the  conclusion  of  peace  in  1790,  each  party 
was  left  with  the  same  territory  as  before  the  war.  Neither 
party  had  gained,  but  both  had  suffered  fiom  the  struggle. 
With  a  view  to  ol)tain  supplies  for  an  invasion  of  France, 
Gustavus  summoned  a  diet  to  meet  in  1792  at  Gefle  on  the  Gulf 
of  Bothnia.  With  a  sufficient  military  force  to  overawe  all 
opposition  he  succeeded  in  obtaining  what  an  exhausted  coun- 
try could  furnish.  Shortly  thereafter  he  was  assassinated  at  a 
masked  ball.  His  brother  became  regent  and  ruled  in  peace 
during  the  minority  of  his  son,  who  mounted  the  throne  as 
Gustavus  IV.  Gustavus  conceived  a  bitter  hostility  to  Napo- 
leon, early  joined  the  British  in  the  coalition  against  him  and 
persisted  in  his  warlike  attitude  when  Russia  and  Prussia  had 
concluded  peace.  His  obstinacy  carried  him  so  far  as  to  cause 
a  rupture  with  Russia  and  Denmark.  He  attempted  an  inva- 
sion of  Norway  but  was  driven  out  and  in  1809  was  deposed. 
Charles  XHT  concluded  peace  with  Russia,  abandoning  all 
Finland.  In  1810  the  French  Marshal  Bernadotte  was  named 
as  successor  to  the  Swedish  throne,  and  in  18 13  he  started  with 
20,000  Swedes  to  join  the  allies  against  Napoleon  and  his  ally 
Denmark  and  compelled  the  latter  to  cede  Norway  to  Sweden, 
lie  then  invaded  Norway  and  forced  the  unwilling  people  to 
submit  to  Swedish  authority.  The  Danes,  having  been  on  the 
losing  side,  were  forced  to  submit  to  the  permanent  loss  of 


474  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Norway  and  ceased  to  be  a  prominent  power.  The  duchies  of 
Schleswig  and  Holstein  at  all  times  occupied  a  relation  to  the 
Danish  crown  different  from  that  of  other  j)rovinces  and  had 
been  the  cause  df  many  wars.  In  1848  there  was  war  with 
Prussia  over  these  dutchies,  and  the  peace  of  1850  confirmed 
the  possession  of  Denmark,  but  in  1864  they  were  taken  from 
the  Danes  by  the  combined  forces  of  Austria  and  Prussia  and 
thereafter  retained  by  Prussia. 

The  modern  constitution  of  Denmark  was  drawn  up  by  an 
assembly  elected  for  that  purpose  in  1849  and  ratified  by  King 
Frederick  VII  in  1850.  It  provided  for  a  diet  of  two  houses, 
both  elective.  The  first,  called  the  Folksthing,  deals  with  the 
budget  and  general  affairs,  and  is  composed  of  one  member  for 
every  16,000  people,  elected  for  a  term  of  three  years.  The 
second  chamber,  called  the  LandstJmig,  under  the  revision  of 
1866  consists  of  sixty-six  members,  twelve  df  whom  are 
named  by  the  king,  and  the  others  are  elected  for  terms  of 
eight  years  by  districts.  Its  functions  are  confined  to  local 
matters.  The  king  is  the  executive  head  and  is  assisted  by  a 
privy  council.  In  its  educational  system  Denmark  takes  high 
rank.  It  is  directed  by  a  royal  commission,  composed  of  a 
president  and  four  assessors,  who  appoint  the  professors  at  the 
university  of  Copenhagen  and  all  teachers  of  grammar  schools. 
Attendance  at  the  schools  is  compulsory,  and  nearly  all  can 
read  and  write.  Lutheran  is  the  religion  of  State  and  con- 
firmation is  compulsory.  Denmark  is  still  afflicted  with  class 
distinctions  and  an  hereditary  aristocracy  with  an  undue  share 
of  wealth  and  exemption  from  taxes  and  burdens.  The  per- 
petuation of  the  aristocratic  class  is  fortified  by  the  law  oif 
primogeniture,  and  other  traces  of  the  feudal  system  still  abide 
there.  On  the  whole,  however,  Denmark  has  gained  far  more 
in  the  last  century  from  a  more  useful  government  than  it  did 
from  a  more  powerful  one  in  former  years. 

The  union  of  Norway  and  Sweden  was  recognized  by  the 
congress  of  Vienna  in  1814  and  maintained  till  the  peaceful 
separation  in  1905.  vSince  the  fall  of  Napoleon,  Sweden  and 
Norway,  so  long  given  over  to  almost  ceaseless  warifare,  have 
enjoyed  a  long  period  of  peace  and  growing  prosperity.     The 


DENMARK,   SWEDEN  AND  NORWAY  475 

two  countries  were  united  under  one  king  in  accordance  with 
the  Riksact  of  1815,  which  left  each  free  from  the  other  as 
to  all  internal  affairs,  their  foreign  relations  only  being  joint; 
both  being  under  the  same  king,  as  executive  head,  and  bound 
to  defend  each  other  in  case  of  war.  Bernadotte  ruled  Sweden 
and  Norway  under  the  style  of  Charles  XIV  from  1818  till 
1844.  He  devoted  much  of  his  energy  to  internal  improve- 
ments and  those  useful  duties,  which  tend  to  the  coni'fort  and 
happiness  of  the  people  instead  of  their  destruction.  No  ma- 
terial change  was  effected  in  the  internal  constitution  df  Swe- 
den, either  on  its  union  with  Norway  or  during  his  reign.  In 
1866  the  constitution  was  amended  and  a  diet  established,  con- 
sisting of  two  chambers,  one  elected  for  nine  years  by  the 
provincial  assemblies  and  towns,  and  the  other  for  three  years 
by  vote  of  all  natives  possessing  the  required  property  quali- 
fication. The  executive  power  is  vested  in  the  king,  acting 
under  the  advice  of  a  council  of  ministers,  who  are  responsible 
to  the  diet.  Legislation  may  be  initiated  either  by  the  king  or 
the  diet,  but  must  be  concurred  in  by  both.  The  council  of 
state  consists  of  ten  members,  seven  of  whom  are  respectively 
the  heads  of  the  several  departments  of  justice,  foreign  affairs, 
army,  navy,  internal  affairs,  finance  and  ecclesiastical  and 
school  affairs.  The  Riksdag  annually  appoints  a  board  to  ex- 
amine the  record  of  the  proceedings  of  the  council  and  with 
power  to  indict  them  before  the  Rikratt.  The  Riksdag  meets 
annually.  To  be  eligible  to  the  upper  house  a  person  must  be 
thirty-five  years  old,  own  land  worth  80,000  crowns  or  have 
paid  taxes  on  an  annual  income  df  1000  crowns.  Members  of 
the  upper  house  serve  without  pay,  but  members  of  the  lower 
house  receive  1200  crowns  per  year,  and  are  chosen  by  voters 
possessed  of  a  property  qualification  of  the  value  of  1000 
crowns  or  farm  lands  worth  6000  crowns,  or  who  pay  taxes 
on  an  income  of  800  crowns.  All  electors  are  eligible  to  the 
low'er  house.  Sweden  is  divided  into  twenty-four  counties 
with  representative  local  governments,  which  levy  local  taxes 
and  regulate  local  affairs.  The  judicial  system  consists  of 
courts  of  three  grades,  i.  The  haradsrattcr  consisting  of  a 
judge  and  seven  to  twelve  assessors  elected  by  the  people,  in 


4/6  EVOLUTION  OF  GOVERNMENTS  AND  LAW.S 

which  the  assessors,  if  unanimous,  may  decide  contrary  to  the 
opinion  of  the  judge.  In  the  towns  there  are  radhnsratter, 
boards  of  magistrates.  2.  Three //o/ra//cr  (higher  courts)  in 
Stockhohn,  Jonkoping  and  Christanstad  and  3.  the  Supreme 
Royal  Court,  two  members  of  which  attend  sessions  of  the 
council  when  questions  of  law  are  settled.  Jury  trials  are  not 
allowed  except  in  cases  relating  to  the  liberty  of  the  press. 
The  educational  system  is  of  a  high  order.  Attendance  of 
the  schools  is  compulsory.  The  universities  of  Upsala  and 
Lund  are  flourishing  institutions  of  high  rank. 

On  the  acceptance  of  the  union  of  Norway  with  Sweden  by 
the  Storthing,  the  Norwegian  representative  assembly,  the  king- 
sanctioned  the  constitution  made  at  Eidwald  on  May  17,  18 14, 
and  promised  that  no  change  in  it  should  be  made  without  the 
consent  of  the  Storthing.  The  fundamental  law  of  Norway 
consists  of  1 12  articles  and  made  it  an  hereditary  constitutional 
monarchy  with  the  same  king  and  the  same  rules  of  succession 
as  those  of  Sweden.  The  constitution  required  the  king  to 
take  the  following  oath  before  the  Storthing:  "I  promise  and 
depose  that  I  will  govern  the  kingdom  of  Norw^ay  conformable 
to  its  constitution  and  laws,  so  help  me  God  and  His  holy 
w^it."  The  cabinet  is  to  consist  of  Norwegians  only,  who 
"shall  carry  on  the  government  in  the  name  and  on  behelf  of 
the  king,"  three  of  whom  shall  constantly  attend  the  king 
while  in  Sweden.  The  ministry  are  accountable  to  the  Storth- 
ing. The  organization  of  the  Strothing  is  peculiar.  It  is  di- 
vided into  two  bodies,  a  Lagting  and  an  Odclsting.  The  mem- 
bers of  both  are  elected  by  districts  merely  as  members  of  the 
Storthing,  and  the  whole  body  selects  from  its  members  one- 
fourth  its  number,  who  constitute  the  Lagting,  the  other  three 
fourths  constituting  the  Odehting.  All  bills  are  first  intro- 
duced in  the  Odclsting  by  a  member  or  a  minister.  If  passed, 
a  bill  goes  to  the  Lagting,  which  may  concur  or  reject  it.  In 
case  o(f  a  rejection  by  the  Lagting  it  is  again  considered  and  if 
again  passed  with  or  w'ithout  amendments  it  is  once  more  sub- 
mitted to  the  Lagting.  If  then  rejected  it  is  considered  by  the 
whole  Storthing,  sitting  as  one  body,  a  two  third  vote  being 
required  to  pass  it.     When  passed  the  act  went  to  the  king, 


DENMARK,  SWEDEN  AND  NORWAY  477 

who  signed  if  he  approved  it,  and  suspended  if  he  disapproved. 
If  a  bill  had  been  passed  without  amendment  by  three  regular 
Storthings  elected  successively,  during  sessions  separated  by 
at  least  two  intervening  regular  sessions,  it  became  a  law 
without  the  king's  sanction.  Appropriation  bills  were  not 
subject  to  the  king's  veto. 

The  democratic  character  of  the  Storthing  was  well  tested, 
when  the  hereditary  nobility  was  abolished  by  an  act  pro- 
posed in  1 815  and  finally  passed  in  1824  under  the  provisions 
of  the  constitution,  without  the  king's  sanction  and  over  his 
opposition  and  repeated  objection.  The  people  of  Norway 
escaped  the  blight  of  the  feudal  system.  The  peasants  have 
always  been  free,  and  their  tenure  of  land  has  been  that  of 
absolute  owners.  The  lowest  court  in  Norway  is  that  of  mu- 
tual agreements,  held  once  a  month  in  every  parish  by  a  com- 
missioner elected  by  the  householders.  Next  is  the  sorens- 
krior  which  sits  quarterly  and  has  jurisdiction  of  both  civil 
and  criminal  causes.  The  entire  kingdom  is  divided  into  four 
provinces,  eighteen  amts,  sixty-)four  sorcnskriveries  and  forty- 
four  fogderies.  The  stifts-amt  court  consists  of  three  judges 
with  assessors,  who  are  stationary  in  the  chief  towns  in  each 
of  the  four  grand  divisions,  and  review  the  action  of  inferior 
courts.  All  cases  may  be  carried  by  appeal  to  the  Hoieste  Ret 
at  Christiania.  A  judge  is  liable  in  damages  for  a  wrong 
decision.  The  system  of  electing  members  of  the  Storthing  is 
peculiar,  in  that  the  voters  choose  electors  who  meet  in  each 
countv  and  name  the  members.  A  low  property  qiralification 
is  required  or  a  public  appointment  to  qualify  a  voter. 

Norway  has  a  good  school  system,  ranging  from  generally 
attended  priman'  schools,  middle  and  high  schools  to  the 
university  at  Christiania.  The  Norwegian  of  to-day,  as  his 
ancestor  the  viking,  still  sails  the  sea,  and  considering  the 
number  df  people  in  the  country,  Norway  plays  a  very  promi- 
nent part  in  the  carrying  trade  and  foreign  commerce  of  the 
world.  Her  people  are  no  longer  the  dread  and  terror  of  the 
seas,  but  honest,  peaceful  toilers,  faithfully  doing  their  part 
of  the  useful  labors,  yet  preserving  their  old  love  of  liberty 
and  retaining  an  essentially  democratic  state. 


478  EVO/LUTIOX  OF  GOVERNMENTS  ANO  LAWS 

In  1905,  owing  to  the  refusal  of  the  King  to  accede  to 
the  demands  of  Norway  with  reference  to  the  foreign  consular 
service,  the  relations  of  the  two  countries  were  severed  peace- 
fully. King  Oscar  relinquished  the  crown  of  Norway  on 
October  27,  and  on  November  18  Charles  of  Denmark  was 
elected  king  of  Norway  and  took  the  name  of  Hakon  VII. 

In  1907  parliamentary  suffrage  was  given  to  unmarried 
women  over  twenty-five  years  of  age  who  pay  taxes  on  in- 
comes of  300  kroner  in  the  country  or  400  in  town  and  to 
married  women  whose  husbands  pay  taxes  on  like  incomes. 


CHAPTER  XX 

Germany,  Austria,  Hungary  and  Poland 

The  characteristics  of  the  early  German  society  have  been 
briefly  mentioned  in  Chapter  II.  The  mass  of  the  people  were 
freemen,  who  bore  arms  and  held  as  slaves  prisoners  of  war 
and  those  condemned  to  slavery  for  crime.  Important  affairs 
were  decided  in  assemblies  of  the  tribe,  and  the  authority  of 
the  nobles  was  temporary  and  largely  dependent  on  the  will 
of  the  freemen.  Lands  were  owned  in  common  and  peri- 
odically distributed.  Each  village  chose  its  own  chief,  and 
the  heads  of  the  hundreds  and  tribes  were  also  elected  by  the 
freemen.  The  chiefs  were  accustomed  to  gather  a  personal 
following  around  them,  which  became  the  nucleus  of  military 
power  and  the  starting  point  of  established  authority.  In  war 
the  whole  body  of  freemen  constituted  the  army  and  went  out 
to  battle.  When  large  numbers  combined  they  chose  their 
hersog.  The  Romans  came  in  contact  with  the  Cimbri  and 
Teutons  about  loo  B.C.  In  numerous  conflicts  with  various 
tribes  thereafter  they  invariably  found  them  strong  and  brave. 
In  A.D.  6  Arminius  formed  a  confederacy  of  such  power  that 
he  was  able  to  fall  upon  Varus  and  utterly  destroy  his  legions. 
The  Romans  succeeded  in  establishing  their  authority  over 
most  of  Austria,  Hungary  and  along  the  Rhine,  but  were 
never  able  to  extend  their  rule  over  interior  and  northern  Cier- 
many.  With  increase  in  numbers  and  advancement  in  capacity 
for  organization  the  Germans  in  turn  drove  the  Romans  out 
and  invaded  the  Roman  pro\'inces.  The  Marcomanni  tformcd 
a  powerful  league,  whicli  the  Romans  under  Marcus  Aurelius 
fought  through  successive  campaigns.  In  the  fourth  century 
the  Goths  founded  a  great  kingdom,  extending  across  the 
continent  from  the  P>altic  to  the  Black  Sea.  This  was  l)roken 
up  by  the  Huns,  who  poured  in  over  the  Russian  steppes  from 
Asia.     Under  pressure  from  this  invasion  the  Burgundians, 

47y 


4So  EVO-LUTION   OF  GOVERNMENTS  AN)D  LAWS 

Vandals  and  Suevi  moved  westward,  the  first  named  taking 
the  valley  of  the  Rhone,  the  Vandals  passing  on  through  Gaul 
and  Spain  into  Africa  and  the  Suevi  establishing  themselves 
in  Spain.  The  Goths  under  Alaric  invaded  Italy,  seized  Rome, 
and  spread  over  Gaul  and  Spain.  The  Lombards  also  pushed 
southward  and  succeeded  the  Goths  in  the  mastery  of  Italy. 
The  Avars  from  the  east  established  themselves  in  Hungary. 
Though  these  and  other  tril)es  played  a  most  important  part 
in  the  dismemberment  of  the  Roman  empire  and  established 
their  authority  over  large  districts,  the  most  important  ad- 
vances toward  the  organization  of  a  great  German  state  were 
first  made  by  the  Franks,  who  dwelt  along  the  lower  Rhine. 
They  lived  in  close  contact  with  the  Romans  of  Gaul,  with 
whom  they  were  comparatively  friendly  and  ifrom  whom  they 
borrowed  notions  of  government.  By  the  middle  of  the  fifth 
century  the  Salian  Franks,  who  dwelt  about  the  mouth  of  the 
Rhine  and  along  the  shore  of  the  North  Sea,  had  an  heredi- 
tary king,  who  ruled  over  a  state  divided  into  gaiie  governed 
l)y  grafcn  appointed  by  the  king.  There  were  no  nobles  but 
the  officials  and  immediate  followers  of  the  king.  The  popular 
assemblies  of  freemen  were  however  still  the  source  of  auth- 
ority and  determined  all  matters  of  great  concern.  Under 
Clovis,  481  to  511,  the  kingdom  was  extended  both  east  and 
west. 

In  the  Germanic  portion  of  the  kingdom  authority  was  dele- 
gated to  favorites,  as  grafcn  in  the  counties  and  hcrzogcn  over 
larger  districts,  to  whom  were  given  large  tracts  of  land. 
While  the  kings  increased  the  measure  of  their  authority  in 
the  western  portion  of  their  dominions  and  gradually  ceased 
tc>  consult  with  the  freemen  of  the  nation,  in  the  east  the  as- 
semblies of  the  tribes  and  hundreds  were  still  held,  and  the 
authority  of  the  king  and  his  officers  was  kept  in  check. 
Through  the  ownership  of  land  and  the  retainers  by  whom 
they  were  surrounded,  the  grafcn  and  hcraogcn  gradually  ex- 
tended their  power  over  the  freemen  and  shook  off  the  re- 
straints of  the  king,  till  under  the  impotent  Merovings  all  real 
authority  was  in  their  hands. 

Under  the  more  vigorous  sway  of  the  mayors  of  the  palace, 


GERMANY,  AUSTRIA.  HUNGARY  AND  POLAND  481 

Pepin  and  Charles  Alartel,  the  central  power  was  restored  to 
some  extent,  and  under  Charlemagne  a  more  thorough  and 
efficient  system  was  established.  The  authority  of  the  Merov- 
ings  was  never  established  over  the  whole  of  Germany.  The 
Saxons  and  many  others  repeatedly  repudiated  it.  They  pre- 
served their  free  tribal  system  and  refused  to  accept  Christi- 
anity down  to  the  time  of  Charlemagne.  The  Saxons  refused 
to  confer  on  their  chiefs  authority  to  bind  them  by  treaties. 
No  central  authority  capable  of  speaking  for  all  the  tribes 
existed.  The  Bavarians  also  retained  much  of  the  same 
independence. 

Charlemagne  extended  his  general  system  over  Germany. 
Over  the  border  counties  he  placed  Margraves,  wdio  admin- 
istered justice  in  his  name,  collected  tribute  and  commanded 
the  border  forces.  Over  the  interior  counties  he  placed  grafcn, 
who  decided  causes  in  accordance  with  local  customs  and  the 
general  code.  Four  times  each  year  each  district  was  visited 
by  his  messengers,  who  reported  to  him  and  carried  his  com- 
mands. He  also  founded  schools  in  connection  with  the 
churches  and  monasteries.  Under  his  rule,  however,  the  li- 
berties of  the  freemen  were  curtailed,  and  their  great  assem- 
blies no  longer  held.  The  nobles  only  were  consulted,  and 
their  advice  was  followed  when  it  suited  him.  The  matters 
which  had  before  been  decided  by  the  assemblies  of  freemen 
were  determined  by  his  appointees,  and  all  popular  gatherings 
were  discouraged.  The  burdens  of  his  many  wars  fell  heavily 
on  the  people,  who  were  often  compelled  to  serve  in  distant 
parts  to  their  financial  ruin  as  well  as  risk  of  life.  From  all 
on  whom  he  conferred  lands,  Charles  exacted  an  oath  of 
fealty,  he  also  required  all  his  prelates,  counts  and  many  great 
landowners,  whose  titles  were  not  received  as  benefices  from 
him,  to  take  a  like  oath. 

The  feudal  system  developed  as  an  accompaniment  of  the 
empire  of  the  Franks.  Its  essence  was  rulership  through  a 
theory  of  land  tenure,  by  which  the  relations  of  the  different 
orders  of  society  were  based  on  their  interest  in  or  relation 
to  the  soil.  The  ancient  Germans  had  not  reached  the  concep- 
tion of  absolute  title  to  land.     They  regulated  occupancy  in 


482  EVOLITTION  OF  GOVERNMENTS   AN(D  LAWS 

severalty  for  from  one  to  three  years  by  the  freemen  of  the 
tribe,  but  did  not  entertain  the  artificial  notion  of  a  title  which 
continued  through  all  time  as  an  absolute  property,  even  of 
the  tribes.  The  Romans  made  no  distinction  in  theory  between 
title  to  land  and  to  cattle  and  slaves  employed  in  tillage.  The 
feudal  system  came  with  the  seizure  of  the  lands  of  the  Ro- 
mans and  others  in  Gaul  by  the  invading  Franks.  Dominion 
over  the  land  and  the  conquered  people  were  acquired  con- 
temporaneously, and  in  granting  local  jurisdiction  and  mas- 
tery, whether  as  a  mere  landowner  or  as  an  agent  of  the 
sovereign  ])ower,  Charlemagne  exacted  an  oath  of  fealty.  The 
high  regard  in  which  the  authority  of  the  church  had  come  to 
be  held  and  the  fearful  consequences,  spiritual  and  temporal, 
which  were  believed  to  result  from  a  violated  oath,  gave  to 
the  form  of  swearing  fealty  a  force  and  value  deemed  of 
first  importance.  The  object  of  the  kings  in  parcelling  out 
the  land  among  feudatories  was  to  secure  their  own  dominion 
jjy  the  military  service  which  their  vassals  were  bound  to 
furnish.  The  counts  and  Margraves  appointed  by  Charle- 
magne under  his  vigorous  rule  obeyed  his  commands  and  car- 
ried out  his  policy,  but  under  his  weak  successors  the  feudal 
system  developed  power  in  the  local  lord,  who  became  a  despot 
over  those  beneath  him,  a  jealous  and  contentious  neighbor  to 
his  ecpials  and  a  haughty  and  often  re])ellious  vassal  of  the 
king.  On  his  own  estate  the  feudal  lord  administered  what 
had  to  pass  for  justice.  The  actual  tillers  of  the  soil  were 
without  protection  as  against  him.  The  practice  of  building 
strong  castles,  within  which  the  barons  defied  all  authority  and 
from  which  they  issued  to  rob  the  passing  merchant  or  to 
wage  war  on  some  neighbor,  nowhere  gained  uK^re  ample  de- 
velopment than  along  the  Rhine,  Danube  and  thrcnighout  Ger- 
manv.  Not  all  of  the  lands  of  Germany  were  held  l)y  feudal 
tenure.  The  village  system  prevailed  largely  in  the  south, 
and  peasant  communities  with  lands  in  common  have  survived 
in  various  parts  to  the  present  day.  It  would  be  a  tedious  and 
perhaps  profitless  task  to  trace  the  endless  wars  for  succession 
to  power  and  the  ever  changing  frontiers  of  the  German  em- 
perors, who  held  more  or  less  sway,  according  to  their  varying 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  4S3 

capacities  and  the  shifting  combinations  of  local  rulers  with 
which  they  were  forced  to  contend.  Charlemagne  was 
crowned  at  Rome  by  the  Pope  and  held  real  power  in  Italy. 
In  918  Henry,  Duke  of  Saxony,  was  chosen  Emperor  and, 
being  a  capable  and  vigorous  ruler,  extended  his  authority 
over  the  whole  German  population  and  in  a  great  battle  de- 
feated the  Magyars,  who  were  the  scourge  of  Germany  at 
that  time.  He  encouraged  the  building  oJf  towns  for  the 
traders,  which  were  made  places  of  defense,  and  at  that  early 
day  introduced  a  check  on  the  tendency  of  the  great  lords  to 
draw  all  the  freemen  to  their  support  as  vassals.  The  towns 
steadily  developed  as  centers  of  industry  and  trade,  and  their 
spirit  of  independence,  which  has  never  disappeared,  has  pro- 
foundly influenced  German  civilization  in  all  succeeding  ages. 
Probably  this  development  should  l>e  attributed  more  to  the 
genius  of  the  people  than  to  the  policy  of  Henry.  At  Henry's 
request  the  nobles  after  his  death  chose  his  son  Otto  as 
his  successor.  He  not  only  preserved  but  extended  the  bounds 
of  the  empire.  He  added  Lombardy  to  his  dominions  and 
received  the  imj^^erial  crown  from  the  hands  of  the  Pope. 
Henceforth  the  German  emperors  assumed  the  title  of  Roman 
emperors  and  claimed  to  rule  the  Holy  Roman  empire,  whether 
receiving  the  crown  ifrom  the  Pope  or  not  and  without  regard 
to  the  possession  of  real  power  in  Italy.  Otto  had  to  contend 
with  rel>ellious  subjects.  The  Roman  title  and  eft'orts  to  rule 
Italy  proved  a  source  of  weakness  rather  than  strength  to  his 
successors.  The  real  governing  power  soon  fell  into  the  hands 
of  local  potentates  holding  large  estates,  or  of  leaders  chosen 
by  the  people  in  contests  with  the  invading  Northmen,  Mag- 
yars and  Slavs,  against  whom  the  Emperors  failed  to  give 
protection.  We  read  of  dukes  of  Saxony,  Bavaria,  Swabia. 
Lorraine  and  Franconia,  whose  i3ower  and  influence  grew  as 
feudal  lords.  Many  unprotected  owners  of  free  or  allodial 
lands,  l)eing  at  the  mercy  of  more  powerful  neighbors,  chose 
to  surrender  their  holdings  to  a  powerful  chief  and  take  them 
back  as  fieifs  under  the  protection  of  the  feudal  lord.  The 
central  |)Ower  was  without  suflicient  vigor  to  restrain  the  great 
lords,  who  levied  war  on  one  another  at  will.     The  imperial 


484  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

power  ceased  to  be  recognized  as  an  inheritance  after  the  ac- 
cession to  the  throne  of  Arnuld,  the  illegitimate  son  of  Carl- 
man:  thereafter  the  Emperors  were  elected.  In  911  Conrad 
of  Franconia  was  chosen  by  the  nobles  under  the  lead  of  Otto,, 
duke  of  Saxony.  From  that  time  down  to  the  final  separation 
of  Austria  and  Germany  in  recent  times  the  office  was  filled 
by  election,  but  the  number  of  electors  was  very  limited.  It 
was  the  choosing  of  an  Emperor  by  princes  who  exercised 
more  real  power  than  he.  The  local  rulers  under  the  titles  of 
graf,  herzog,  Margrave,  landgrave,  king,  elector  and  other 
designations  of  lay  rulers,  and  the  bishops,  archbishops,  ab- 
bots and  other  ecclesiastical  rulers,  were  each  subjected  to 
restraining-  influences  of  varying  potency  according  to  times 
and  circumstances.  The  kings  and  grand  dukes,  who  acquired 
authority  over  considerable  districts,  were  dependent  for  their 
military  following  on  their  feudatories.  The  ancient  German 
idea  of  determining  questions  of  war  and  peace  in  assemblies 
of  freemen  was  never  wholly  obliterated,  although  at  times 
and  in  places  disused.  Local  assemblies  of  the  inferior  no- 
bility were  often  convoked  in  all  parts  of  Germany,  and  ex- 
ercised the  power  at  times  of  choosing  their  overlords  and 
of  deposing  distasteful  rulers.  Feudalism  effected  the  ex- 
clusion from  the  assemblies  of  the  great  mass  of  the  people, 
but  the  nobility,  of  whom  Germany  has  been  at  all  times  most 
prolific,  never  became  accustomed  to  submit  to  hereditary  ar- 
bitrary power. 

While  in  other  countries  it  is  possible  to  trace  a  govern- 
mental system  maintained  by  changing  dynasties  through  long 
periods  of  time,  in  Germany  we  trace  the  development  of  the 
civilization  of  a  race  of  people  maintaining  the  possession  of 
their  ancient  home  and  often  sending  out  conquering  hordes 
to  assume  mastery  of  other  lands,  but  never  themselves  at  any 
time  subjected  either  to  a  single  foreign  ruler  or  a  firmly 
established  government  of  their  own  with  general  power  over 
the  whole  German  people.  In  the  earliest  times  of  which  we 
have  any  account,  free  German  tribes  occupied  substantially  all 
of  modern  Germany,  the  Netherlands,  and  Austria.  The  Ro- 
mans succeeded  in  imposing  their  authority  <>n  the  southern 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  485 

and  a  little  of  the  western  part  of  this  territory,  but  it  was 
always  a  precarious  dominion,  and  the  crumbling  of  the 
empire  first  began  where  it  came  in  contact  with  Germans. 
Except  for  a  brief  period  while  the  Romans  held  Dacia — in- 
cluding modern  Hungary^ — the  empire  was  bounded  by  the 
Danube  and  the  Rhine,  beyond  which  the  Germanic  tribes 
maintained  their  freedom  and  defended  their  possessions 
against  all  comers.  They  have  been  attacked  from  every 
quarter,  from  the  west  in  the  early  days  by  the  Romans  and 
later  by  the  French  and  Spanish ;  from  the  north  by  their 
kinsmen  the  Danes,  Swedes  and  Norwegians;  from  the  east 
by  Poles  and  Russians  in  the  north  and  the  later  swarms  from 
Asia  in  the  south — Huns,  Avars,  Magyars,  Tartars  and  Turks. 
In  the  southeast  Goths,  classed  as  of  German  stock,  and 
Avars,  Huns  and  Turks  have  established  successively  their 
authority  over  Hungary  and  part  of  Austria,  but  the  German 
stock  has  never  been  rooted  out,  and  only  in  Hungary,  where 
the  Magyars  became  the  dominant  race,  have  they  been  forced 
to  give  way  and  allow  an  alien  people  to  impose  enduring  do- 
minion over  them.  On  the  other  hand  the  German  Franks 
established  their  dominion  over  Gaul.  The  Goths,  Vandals 
and  Suevi  overran  Spain.  Wave  after  wave  of  German  con- 
quest swept  over  Italy  under  the  names  df  Goths,  Lombards, 
Franks  and  Germans.  Even  Britain  was  colonized  and  mas- 
tered by  the  Angles  and  Saxons. 

The  preservation  of  the  German  race  and  the  maintenance 
of  its  possession  of  central  Europe  have  not  been  due  to  any 
strong  centralized  government,  nor  to  harmonious  or  con- 
certed action  of  the  different  states.  The  system  of  dividing 
inheritances  equally  among  males  has,  during  much  of  the 
time,  been  applied  to  those  estates  which  carried  also  heredi- 
tary rulership,  and  has  resulted  in  repeated  divisions  of  states 
among  heirs,  who  frequently  fought  with  each  other  for  the 
whole.  The  Franks  under  the  Merovings  suffered  for  cen- 
turies from  the  contests  of  the  heirs  of  their  kings  for  the 
inheritance.  The  rights  r*f  rulers  great  and  small  were  the 
only  rights  considered,  and  the  people  were  constantly  called 
on  to  give  up  their  lives  in  the  struggles  of  vicious  and  cruel 


486  EV0.LUT10N   OF  GOVERNMENTS  AN'D  LAWS 

nobles  for  mastery  over  the  land.  Nothing;-  can  l)e  more  sad 
and  dreary  than  the  records  of  the  bloody  struggles  brought 
on  by  the  ambition,  malice,  cupidity  and  other  evil  passions  of 
those  invested  with  authority.  If  the  accounts  of  wars  great 
and  petty,  with  which  the  pages  of  German  history  are  so 
completely  filled,  were  in  fact  the  records  of  all  that  has  been 
done  by  the  princes  and  rulers,  a  sweeping  judgment,  utterly 
condemning  the  whole  and  denying  all  value  in  such  govern- 
ments, might  safely  be  pronounced,  but  war  has  always  been 
the  favorite  topic  of  historians,  and  the  doings  of  peace  are 
mostly  left  without  other  record  than  their  impresses  on  so- 
ciety and  the  face  oif  the  earth.  Most  prominent  among  the 
characteristics  of  German  society,  the  good  effects  of  which 
can  be  discerned  in  all  periods  of  history,  are  the  relative 
purity  of  domestic  life,  the  respect  accorded  women  and  the 
equal  treatment  of  children.  No  cruel  theory  of  slavery  to  a 
father  or  husband  was  ever  adopted.  Purity  and  warmth  of 
attachment  of  husbands  and  wives  to  each  other  and  to  their 
children  without  distinction  have  in  all  ages  been  eminently 
characteristic  of  the  Germans.  Though  the  Rhine  was  for 
centuries  infested  by  its  robber  barons,  and  though  wrong  and 
robbery  abode  securely  in  the  castles  all  over  the  land,  in  no 
country  and  among  no  people  has  there  developed  a  more 
general  and  sturdy  honesty  than  among  the  Germans.  The 
performance  olf  promises  and  the  payment  of  debts  imply  in- 
dustry, without  which  the  ability  is  wanting.  So  the  German 
people  are  noted  for  industry  and  thrift.  This  is  especially 
true  of  the  low  countries,  Holland  and  Belgium,  where  the 
manufacturing  of  fabrics  and  attendant  foreign  trade  early 
developed.  The  strength  of  the  German  people  has  been  and 
is  moral  strength.  They  have  not  until  very  recent  times  ex- 
hibited marked  capacity  for  great  combination  for  military 
supremacy,  but  have  on  countless  fields  exhibited  a  tenacity 
and  obstinate  courage  which  has  preserved  the  integrity  of 
their  homes,  where  other  people  would  have  l)een  crushed  or 
enslaved.  German  development  has  been  many  sided.  TTcnry 
III  1039-56  sought  to  reform  the  church,  which  had  fallen 
into  great  corruption,  and  in  1046  he  entered  Rome,  deposed 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  487 

the  claimants  to  the  papal  throne  and  placed  on  it  a  man  of 
his  own  selection.  In  1075  Gregory  III  assumed  ix)wers 
never  before  conceded  to  the  Pope  and  issued  a  decree  for- 
bidding the  clergy  to  marry  and  against  investiture  in  clerical 
offices  by  laymen.  In  Germany  half  the  land  is  said  to  have 
been  held  by  the  clergy,  to  whom  it  had  been  given  by  the 
sovereign,  and  the  principal  strength  of  the  emperor  was  de- 
rived from  the  support  of  the  churchmen  attached  to  his  in- 
terests by  the  feudal  tie.  Henry  IV  resisted  and  denied  the 
power  of  the  Pope.  In  return  he  was  excommunicated  and 
his  subjects  declared  absolved  from  their  allegiance  by  a  papal 
bull.  A  long  continued  struggle,  known  as  the  war  of  the  in- 
vestitures, followed,  which  did  not  end  till  the  concordat  of 
Worms,  by  which  as  a  compromise  it  was  agreed  that  the 
right  of  electing  the  prelate  should  be  vested  in  the  clergy  in 
the  presence  of  the  emperor  or  his  representative,  and  that 
he  should  invest  them  with  the  sceptre,  and  he  resigned  the 
right  of  investing  them  with  ring  and  staff.  With  Henry  V 
the  Franconian  House  ended,  and  Lothair  duke  of  Saxony 
was  chosen.  The  termination  of  the  Hohenstaulfen  dynasty 
found  the  imperial  authority  reduced  to  a  shadow.  Frederick 
Barbarossa  and  his  successors  exi>ended  so  much  of  their  time 
in  foreign  w^ars,  the  crusade  and  in  Italy,  that  the  rulership  in 
Germany  was  left  almost  wholly  to  the  local  princes.  The 
great  duchies  were  broken  up,  and  the  number  of  lords  holding 
directly  from  the  Emperor  had  been  greatly  increased.  The 
imperial  cities  had  developed  into  free  republics.  The  ruling 
class  in  the  country  consisted  of  a  large  number  of  prelates, 
dukes,  palsgraves,  margraves,  landgraves  and  counts,  inferior 
in  authority  to  the  Emperor  only  and  denying  obedience  to 
him.  Beneath  these  immediate  nobles  were  the  mediate  feudal 
barons  with  their  inferior  holdings.  These  looked  down  upon 
the  simple  freemen,  who  held  allodial  lands,  whom  they  fre- 
quently robbed  and  oppressed.  The  great  bulk  oif  the  popula- 
tion outside  the  cities  consisted  of  the  peasants  and  serfs, 
without  any  share  in  the  government  and  wholly  at  the  mercy 
of  the  no])ility.  Besides  the  free  imperial  cities  there  were 
mediate  cities,  acknowledging  the  sui)remacy  of  the  lord  of 


488  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  district.  The  election  of  the  emperors,  though  in  fact 
dictated  by  a  few  great  princes,  in  theory  required  the  action 
of  the  whole  body  of  nobles  who  Ircld  by  a  tenure  immediate 
from  the  Emperor.  On  the  occurrence  of  the  interregnum 
following  the  death  of  Conrad  IV  in  1254,  through  the  influ- 
ence of  Pope  Urban  IV  the  electoral  college  was  definitely  con- 
stituted of  the  archbishops  of  Mentz,  Cologne  and  Treves,  the 
houses  of  Mittelsbach  and  Saxony,  the  Margrave  of  Branden- 
burg and  the  King  of  Bohemia.  Prior  to  this  time  the  terri- 
tories governed  by  the  princes  were  not  divided  among  the 
heirs,  as  were  private  inheritances.  This  principle  was  now 
changed  and  divisions  were  made  of  the  principal  duchies. 

The  divisions  of  the  states  resulted  in  that  bewildering 
multitude  of  petty  sovereignties,  which  baffles  all  attemj>t  at 
clear  description.  Contemporaneous  with  this  s[)litting  of 
states  the  free  cities  evidenced  some  capacity  for  organiza- 
tion and  combination  for  the  common  good.  The  Rhenish 
Confederation  founded  by  Mainz  and  Worms  within  a  year 
included  seventy  cities.  Even  more  important  was  the  Hanse- 
atic  League,  originating  with  Lubeck  and  Hamburg,  which 
ultimately  took  in  over  eighty  cities  and  became  one  of  the 
great  commercial  powers  of  Europe.  In  1273  Rudolph  of 
Ilapsburg,  a  petty  Swabian  noble,  was  elected  Emperor  and 
obtained  the  grant  of  the  fiefs  of  Austria,  Styria  and  Carinthia 
to  his  son  Albert.  In  this  manner  the  rule  of  the  Hapsburgs  in 
Austria  was  inaugurated  and  thereafter  many  Hapsburgs 
were  recipients  of  the  imperial  title. 

In  1356  Charles  IV  promulgated  what  is  termed  the 
Golden  Bull,  defining  the  rights  of  the  imperial  electors  in 
certain  particulars  as  to  which  there  had  been  uncertainty.  It 
had  not  been  settled  whether  all  the  princes  of  each  electoral 
house  were  entitled  to  vote,  nor  by  what  rule  a  selection  of  an 
elector  should  be  made  from  different  branches  of  a  family. 
This  was  definitely  settled  on  the  principle  of  primogeniture 
and  a  single  vote  to  each  house,  thereby  limiting  the  number 
of  electors  to  seven,  the  three  archbishops  before  mentioned, 
the  King  of  Bohemia,  the  Rhenish  palsgrave,  the  Duke  of 
Saxony   and   the   Margrave   df   Brandenburg.     The   electors 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  489 

were  recognized  as  invested  with  sovereign  powers  within  their 
respective  states,  and  their  subjects  were  allowed  to  appeal  to 
the  imperial  tribunals  only  in  case  of  a  refusal  to  administer 
justice.  When  the  imperial  authority  was  at  a  low  ebb,  vol- 
untary combinations  of  various  kinds  and  for  different  pur- 
poses sprang  up.  The  crusades  developed  the  order  of 
Teutonic  knights,  which  became  a  potent  force  for  a  time. 
During  the  twelfth  century  a  secret  organization  known  as 
the  Vehmgericht  grew  up,  and  continued  its  activity  down 
through  the  reign  of  Charles  IV  (1347  to  1378).  Its  oper- 
ations much  resembled  those  of  a  modern  frontier  vigilance 
committee  in  its  summary  administration  of  punishments  for 
oft'enses  against  the  order.  It  operated  as  a  check  on  the  arbi- 
trary power  of  the  princes,  though  often  used  to  gratiify  the 
malice  of  members  of  the  organization.  The  Hanseatic  league 
grew  in  importance  and  waged  successful  warfare  with  the 
Danish  king  for  the  protection  and  extension  of  its  commerce. 
The  petty  princes  were  allowed,  and  even  encouraged,  to  form 
leagues  among  themselves  for  the  maintenance  of  [>eace.  The 
actual  government  of  the  country  was  divided  between  the 
clergy,  whose  influence  was  powerful  at  all  times,  the  great 
princes,  who  were  held  in  check  by  the  feudal  lords  under  them, 
and  the  free  cities.  In  these  there  were  struggles  between  the 
leading  ifamilies  claiming  special  privileges  and  authority  and 
the  trades  guilds  and  democratic  elements  which  sought  self- 
protection.  The  greatest  vigor  was  found  where  the  brains 
of  many  were  actively  employed  in  public  affairs.  With  the 
development  of  industry  came  the  desire  for  knowledge  and 
the  study  of  the  works  of  the  Greeks  and  Romans.  Commerce 
can  flourish  only  in  an  atmosphere  of  order  and  regulated  by 
recognized  laws.  The  study  of  Roman  law  was  taken  up  by 
the  commercial  cities,  and  its  rules  were  followed  where  ap- 
plicable. The  Germany  of  today  is  noted  for  its  schools  and 
the  general  diffusion  and  profundity  of  its  learning.  Com- 
paratively poor  in  the  (juality  and  extent  of  their  lands,  the 
Germans  are  perhaps  the  richest  of  all  the  people  of  the  earth 
in  that  l>est  possession  of  all,  the  knowledge  acquired  through 
past  ages.     The  founding  of  its  universities,  which  haxe  ex- 


490  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ercised  such  a  2)otent  inlluence  on  modern  civilization,  began 
in  the  fourteenth  century.  Among-  the  earhest  were  those  of 
Prague  1348,  Heidelberg  1386,  Wurzburg-  1402,  Leipsic  1409, 
Rostock  1419,  Greifwald  1456,  Tubingen  1477. 

The  cities  of  Svvabia  formed  a  league  for  mutual  protection, 
which  for  a  time  became  quite  potent,  and  entered  into  an 
alliance  with  the  Swiss  confederates,  but  the  princes  joined 
in  a  counter  alliance,  and  in  1388  in  a  battle  at  Doffingen  the 
cities  were  defeated  and  the  tyranny  of  the  petty  desix^ts  be- 
came still  more  grinding.  In  the  next  century  a  similar  war, 
known  as  the  margraves  war,  was  waged  between  a  league 
of  many  cities,  headed  by  Nuremburg,  and  the  princes.  In 
this,  as  in  the  case  of  the  Swabian  league,  the  advantage  was 
on  the  side  olf  the  princes.  About  this  time  the  mediate  nobles, 
l)relates  and  cities  began  to  assert  their  rights  through  the; 
medium  of  local  diets  into  which  they  gathered.  They  claimed 
the  right  of  determining  questions  of  taxation  and  the  pur- 
poses to  which  the  money  should  be  put,  and  also  to  insist  on 
a  regular  administration  of  justice.  These  diets,  composed 
of  the  lesser  nobility  holding  a  position  intermediate  between 
the  peasants  and  the  great  princes,  exercised  a  salutary  check 
on  the  arbitrary  powers  of  the  great  lords.  The  discovery  of 
gunix)wder  caused  a  great  change  in  the  art  of  warfare  and 
was  followed  by  the  organization  of  bands  of  mercenary 
troops  who  fought  for  whomever  would  employ  them.  In 
1488  a  Swabian  confederation,  in  which  princes,  mediate  no- 
l)les  and  towns  joined  ifor  the  establishment  of  peace,  produced 
good  results  temporarily. 

With  the  advent  of  gunpowder  and  mercenaries  the  feudal 
tie  was  severed  and  feudalism  came  to  an  end.  At  the  farther 
extremity  of  the  empire  the  Magyars,  who  first  appeared  as 
nomads  from  Asia  devastating  the  country  and  spreading 
terror  among  the  Germanic  people,  gradually  adopted  settled 
habits  and  planted  their  habitations  in  a  district  which  had 
been  most  of  the  time  under  the  sovereignty  of  the  emperors. 

Nowhere  have  the  baneful  tendencies  of  pcnver  long  exer- 
cisesd  to  fall  into  the  hands  of  men  w^ho  disregard  the  pri- 
marv  purpose  for  which  the  power  was  conferred  been  more 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  491 

clearly   exhibited   than    in    the   great    Roman    Church.      The 
humble  purity  and   self-sacrificing  spirit  of  Jesus  were  the 
foundation  on  which  the  vast  power  of  the  popes  was  built. 
Temporal  power  and  revenues  became  the  prime  concern  of 
those  who  ruled  the  church,  and  venality  and  immorality  so 
prevalent  that,  instead  of  leading  the  people  in  the  paths  of 
virtue,  the  churches  became  centers  of  pollution.     Germany, 
with  its  free  cities,  its  local  diets  of  nobles  and  its  ancient  tra- 
ditions of  virtue,   quickening  with  the  light  of  the  ancient 
world,  which  it  had  begun  to  study,  was  the  natural  field  for 
the  Reformation.    In  1517  Martin  Luther  nailed  to  the  church 
door  in  Wittenberg  his  famous  thesis.    This  was  not  the  first 
attack  that  had  l^een  made  on  the  prevalent  abuses,  but  it 
precipitated  the  conflict  which  divided  the  Christian  world  into 
hostile  factions,  who  fought,  murdered,  burned  and  tortured 
each  other  with  a  fiendish  cruelty  almost  inconceivable.     Huss 
suffered  martyrdom  one  hundred  years  before  for  like  senti- 
ments.    The  immediate  occasion  of  Luther's  stand  was  the 
sale  of  indulgences  by  papal  authority.    This  was  a  remarkable 
illustration  of  the  prostitution  of  office  for  the  gratification  of 
the  officials.     In  order  to  raise  money  to  maintain  the  pope 
and  high  church  officials  in  the  splendor  so  incompatible  with 
the  teachings  of  the  Master,  the  Pope  sent  out  his  agents  to 
sell  licenses  to  violate  the  moral  law  as  taught  by  the  church, 
and  to  grant  immunity  from  the  consequences  of  wrongdoing 
before  the  commission  of  the  act.     The  purpose  was  to  raise 
money  to  enable  the  clergy  to  gratify  their  own  vices.     It 
was  even  worse  in  principle  than  the  ordinary  robbery  oif  those 
whom  a  ruler  is  bound  to  protect  to  minister  to  his  vanity  or 
sensuality,  because  it  encouraged  those  whose  money  was  taken 
under  a  fradulent  claim  of  power  to  grant  absolution  in  ad- 
vance, to  violate  the  moral  law  and  do  wrong  to  themselves 
and  to  others.     It  was  a  marked  exhibition  of  the  inherent 
tendencv  for  those  who  j)ossess  great  power  to  forget  the  du- 
ties they  have  assumed  and  the  services  they  owe  to  the  multi- 
tude and  pervert  their  offices  to  the  gratification  of  their  own 
lusts  and  selfishness.    The  church,  with  its  pure  and  lofty  mis- 
sion of  leading  men  in  the  paths  of  virtue  and  brotherly  love. 


492  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

was  distorted  into  a  hideous  combination  of  impostors,  who 
encouraged  the  violation  of  the  moral  law  by  others  for  the 
price  of  sin  paid  to  themselves.  Against  the  power  of  the  vast 
church  organization  Luther  opposed  the  teachings  of  Christ 
and  the  moral  law.  The  ifree  cities,  the  local  diets,  the 
schools,  and  even  the  clergy,  perceived  the  strength  of  his  po- 
sition and  the  falsity  of  the  papal  claims.  The  revolt  against 
the  false  assumptions  of  ecclesiastical  power  spread  with 
surprising  rapidity  throughout  Germany.  The  democratic 
elements  sided  with  Luther,  and  the  nobility  divided.  The  im- 
perial force  naturally  sided  with  the  Pope.  As  in  most  revo- 
lutions, the  scope  of  the  issue  broadened  and  deepened.  What 
at  first  was  merely  a  protest  against  a  particular  abuse  became 
an  attack  on  the  assumption  and  exercise  of  a  function  not 
warranted  by  the  constitution  of  the  church.  Direct  account- 
ability of  the  individual  to  his  Maker,  instead  of  mediate  ac- 
countability through  the  church,  became  the  new  doctrine. 
Real  spiritual  penance  of  the  sinner,  instead  of  money  pay- 
ments or  mortifications  of  flesh  imposed  by  the  priesthood, 
was  taught  by  the  reformers.  It  was  a  partial  return  to  the 
democracy  of  the  early  church.  Whatever  forms  or  names 
may  be  assumed,  there  are  at  the  bottom  only  two  distinct  and 
antagonistic  principles  of  government,  the  desix)tic,  by  which 
power  is  exercised  by  the  ruler  for  his  own  purposes  and 
gratification,  the  democratic,  where  it  is  used  for  the  good  of 
the  multitude.  The  terms  are  here  used  to  express  purposes, 
not  forms  of  government.  The  former  is  essentially  vicious, 
because  it  wrongs  the  many  to  minister  to  the  vices  of  the 
few.  The  latter  is  essentially  moral,  because  at  its  foundation 
there  must  be  justice,  fellowship  and  mutual  help,  even  if  real 
brotherly  love  is  wanting.  Many  governments  have  seemed 
to  be  almost  wholly  despotic.  None  have  ever  been  purely 
democratic  in  the  above  sense  ifor  any  long  period.  The  des- 
potic tendency  is  always  present  in  every  established  system. 
Its  tendency  to  grow  has  been  nowhere  better  illustrated  than 
in  the  Roman  church. 

Naturally  the  despotic  elements  of  society  soon  rallied  to  the 
support  of  the  Pope,  while  the  more  democratic  sided  with 


GERMANY.  AUSTRIA.  HUNGARY  AND  POLAND  493 

Luther.  This  is  a  general  statement  of  the  situation,  subject 
to  many  quahhcations  resuhing  from  personal  interests,  sur- 
roundings and  intiuences. 

MaximiHan  of  Austria  was  on  the  imperial  throne  when 
Luther  took  his  stand,  but  died  in  1519,  and  was  succeeded  as 
emperor  by  his  grandson  Charles  V,  who  was  also  King  of 
Spain,  the  two  Sicilies,  and  Lord  of  Burgundy  and  the  Nether- 
lands. Charles  was  a  typical  despot.  In  the  Diet  of  Worms  in 
1 52 1  he  issued  an  edict  denouncing  Luther  and  placing  him 
under  the  ban  of  the  empire.  Before  his  election  the  electors 
had  exacted  from  Charles  a  promise  that  he  would  respect 
German  liberties  and  grant  reforms  which  had  been  demanded 
from  Maximilian.  The  members  of  the  diet  became  alarmed 
at  the  power  assumed  by  Charles  in  this  edict  and  took  steps 
to  impose  checks  on  it.  An  administrative  council  was  nomi- 
nated for  the  government  off  Germany  while  Charles  should 
be  away.  The  number  of  troops  to  be  raised  by  each  state 
for  common  purposes  was  also  definitely  settled.  Charles  in- 
vested his  brother  Ferdinand  with  sole  authority  over  the 
Austrian  territories  and  left  Germany  to  enter  on  his  war 
with  Francis  I  of  France.  During  the  absence  of  Charles 
Ulrich  von  Hutten,  a  young  nobleman,  conceived  the  idea  of 
forming  a  united  reformed  German  state,  and  under  the  leader- 
ship of  Francis  von  Seckingen  a  large  force  was  gathered  and 
an  attack  made  on  the  elector  of  Treves,  but  the  princes  joined 
their  forces  and  Seckingen  was  defeated  and  slain.  The  idea 
of  religious  liberty  suggested  to  the  peasantry  a  revolt  against 
the  grievous  oppression  under  which  they  suffered,  and  in 
1524  they  sought  their  rights  with  the  aid  af  a  few  of  the 
nobility.  The  war  spread  over  much  of  southern  and  central 
Germany,  and  at  first  the  peasants  met  with  some  success,  but 
in  the  following  year  they  were  completely  subdued  and  their 
condition  rendered  even  worse  than  before.  By  these  wars 
the  power  of  the  princes  was  augmented  at  the  exjjense  of  the 
lesser  nobility.  Nevertheless  the  Reformation  made  rapid  pro- 
gress and  gained  recruits  from  the  various  orders  of  society. 
Diets  were  held  for  the  purpose  of  settling  the  controversy,  in 
which  Charles  persistently  sought  to  restore  the  authority  of 


494  EVOLUTION  OF  GOVERNMENTS  ANO  LAWiS 

the  Pope,  hut  met  with  stii])horn  resistance  from  the  Protes- 
tants. Arhitrary  power  is  never  tolerant  of  criticism  of  its 
vices.  It  chngs  to  them  with  more  tenacity  and  desperation 
than  to  deserved  authority.  The  sale  of  indulj^ences,  the 
simony,  venality  and  sensuality  oif  the  clergy  could  not  he  de- 
fended by  reason,  and  all  discussion  of  the  truth  tended  to 
untlermine  clerical  power.  Stern  repression  was  therefore 
resorted  to.  Councils  were  held  at  Spires  in  1526  and  1529, 
at  the  first  of  which  the  administrative  council,  which  leaned 
toward  the  Reformation,  granted  religious  freedom  to  each 
state,  but  at  the  one  in  1829  changes  in  religion  were  forbid- 
den. In  the  following  year  a  diet  was  held  at  Augsburg,  at 
which  the  Lutherans  submitted  a  summary  of  their  doctrines  in 
what  was  styled  the  Augsburg  Confession.  They  declined  to 
attend  mass  and  held  services  of  their  own  in  defiance  of  the 
will  of  Charles.  In  1532  Charles  granted  the  peace  of  Nurem- 
burg,  by  which  temporary  toleration  of  the  Augsburg  Con- 
fession was  allowed.  The  Lutheran  princes  and  cities  formed 
a  league  which  took  in  most  of  the  northern  cities  and  princes 
and  many  of  the  cities  of  southern  Germany.  After  the 
peace  of  Crespy,  concluded  with  France  in  1544,  Charles 
turned  his  arms  against  the  Protestant  league  and  defeated 
them.  He  thereupon  attempted  to  compel  submission  in  re- 
ligious matters.  He  assumed  arbitrary  powers  which  no  Ger- 
man Emperor  since  the  early  days  had  been  able  to  wield. 
His  tyranny  was  distasteful  even  to  the  Catholics,  and  Maurice 
of  Saxony,  who  had  sided  with  Charles  in  the  first  contests, 
now  became  the  leader  of  the  forces  against  him.  Joining 
forces  with  Henry  II  of  France,  he  compelled  Charles  to  flee 
from  Germany  and  sign  the  Peace  of  Passau,  agreeing  to 
summon  a  new  diet,  which,  having  met,  again  provided  for 
religious  toleration  o!f  such  sort  as  each  state  might  see  fit  to 
accord.  This  still  left  abundant  room  for  local  discord.  The 
crime  of  heresy  depended  for  its  existence  on  the  ascendency 
of  Catholic  or  Protestant  and  concord  with  or  dissent  from 
the  faith  of  the  ruler.  The  atrocities  perpetrated  in  the  low- 
lands by  the  duke  of  Alva,  and  by  Frederick  II  in  Bohemia, 
were  characteristic  of  a  war  carried  on  by  a  temporal  despot 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  495 

to  maintain  the  false  and  pernicious  rule  of  a  malignant  clergy. 
Nor  were  the  atrocities  all  on  one  side.  Where  they  were  in 
power,  the  Protestants  were  often  as  intolerant  and  bloody  as 
the  Catholics.  The  pure  religion  of  Jesus  was  not  in  issue 
on  either  side,  but  tyranny  and  malice  brazenly  claimed  re- 
ligious sanction  for  their  fiendish  atrocities. 

The  Thirty  Years'  war  devastated  Germany  and  exhibited 
the  evil  that  men  may  do,  when  to  war's  ordinary  barbarities 
are  added  the  blind  fury  of  religious  fanaticism.  Though  Ger- 
many w^as  the  principal  field  of  the  struggle,  Spain,  France, 
England  and  Sweden  were  at  times  involved,  and,  when  it 
ended,  France  took  territory  on  the  west  and  Sweden  from 
the  north,  thereby  materially  diminishing  the  German  terri- 
tory. The  long  struggle  left  Catholics  in  the  ascendant  in  the 
south  and  Protestants  in  the  north,  and  the  peace  finally  con- 
cluded at  Westphalia  in  1648  recognized  Catholicism,  Luther- 
anism  and  Calvinism.  The  imperial  power  had  been  com- 
pletely shaken  off  by  the  Protestant  citizens  and  princes,  and 
after  the  peace  substantially  all  authority  passed  to  the  diet, 
which  alone  had  power  to  make  laws,  declare  war  and  con- 
clude treaties  in  the  name  of  Germany.  Its  power  over  the 
states  was  however  shadowy,  for  they  were  conceded  the 
right  to  make  alliances  among  themselves,  and  even  with 
foreign  jww^ers  if  not  injurious  to  the  empire.  After  1654 
the  diet  became  a  permanent  body  and  was  made  up  of  rep- 
resentatives of  the  princes  and  cities,  but  it  exercised  little 
authority.  The  real  governing  power  lay  in  the  local  rulers 
and  the  governing-  bodies  of  the  cities.  xA.s  a  result  of  the  war 
the  jx^pulation  was  reduced  from  about  20,000,000  to  6,000,- 
000  or  7,000,000,  and  the  destruction  of  property  was  in  a 
still  greater  proportion.  The  once  flourishing  and  power'ful 
Ilanseatic  League  was  ruined  and  broken  up  in  1635,  during 
the  progress  of  the  war.  Among  the  worst  effects  of  the  long 
struggle  was  the  growth  of  the  spirit  of  despotism  among  the 
ruling  class,  engendered  by  so  long  a  strain  of  war,  and  the 
feeling  of  helplessness,  de|)endency  and  servility  among  the 
multitude.  Even  in  the  cities  democratic  systems  were  con- 
verted into  powerful  oligarchies  or  swept  away  by  princely 


496  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

dictation.  From  the  close  of  the  Thirty  Year's  war  to  the 
French  Revokition  despotic  theories  of  government  prevailed, 
and  the  spirit  of  militarism  grev;^.  The  Austrian  Hapsburgs 
continued  to  hold  the  imperial  title  most  of  the  time,  but  under 
the  lead  of  vigorous  rulers  Prussia  develoi>ed  a  rival  German 
power.  From  the  time  of  Urban  IV,  when  the  constitution 
of  the  electoral  college  was  first  settled,  the  Margrave  df 
Brandenberg  had  been  one  of  the  imperial  electors,  and  in 
1438  the  elector  Frederick  became  a  candidate  for  the  im- 
perial throne.  His  successor  Frederick  II,  1440,  1470,  vigor- 
ously asserted  authority  over  the  cities  and  built  a  castle  in 
Berlin. 

In  1230  the  priestly  military  order  of  Teutonic  knights, 
which  had  been  formed  during  the  crusades,  entered  Prussia, 
whose  people  had  not  yet  been  converted  to  Christianity.  In 
the  course  of  a  half  century  they  subdued  the  country  and 
received  a  grant  of  dominion  over  it  from  the  emperor.  Un- 
der their  rule,  the  country,  which  was  at  their  advent  but 
sparsely  peopled,  was  settled  with  many  German  colonists, 
and  cities  and  towns  were  soon  built.  In  the  course  of  a 
century  the  power  of  the  order  declined,  and  in  1467  West 
Prussia  became  a  fundal  dependency  of  Poland.  In  151 1  the 
Teutonic  Order  chose  All^ert,  of  the  Franconian  branch  of 
the  Hohenzollerns,  as  grand  master  of  their  order.  He  em- 
braced the  Protestant  cause  and  converted  the  lands  of  the 
order  into  a  secular  hereditary  duchy  in  1525,  continuing  as  a 
vassal  of  Poland.  In  161 1  this  duchy  fell  by  inheritance  to 
the  elector  of  Brandenburg,  and  the  two  districts  were  joined 
as  one  country-  under  the  Hohenzollerns.  Thereafter  in  1657 
under  Frederick  William,  called  the  great  elector,  it  was  de- 
clared independent  of  Poland.  In  1701  the  elector  Frederick 
III,  with  the  assent  of  the  Emperor  purchased  by  aid  in  his 
wars,  assumed  the  title  of  king  and  took  the  crown  at  Konigs- 
berg  under  the  style  of  King  Frederick  I  of  Prussia.  Under 
his  rule  Prussia  made  little  progress  and  still  ranked  along 
with  Bavaria,  Saxony  and  Hanover  as  dependencies  of  the 
empire.  His  son  and  successor  Frederick  William  reformed 
the  finances  and  remodelled  the  army,  which  he  brought  to  a 


GERMANY,  AUSTRIA.  HUNGARY  AND  POLAND  497 

high  state  of  disciphne  and  efficiency,  so  that  Prussia  took 
fourth  rank  as  a  mihtary  power,  though  only  twelfth  in  popu- 
lation. He  was  a  despot,  but  a  hardworking,  thoughtful  and 
economical  one,  who  labored  to  add  strength  to  his  state. 
With  the  aid  of  the  Saxons  and  Danes  he  defeated  the  Swedes 
and  drove  them  out  of  Pomerania.  He  collected  taxes  in 
money  for  the  maintenance  of  his  army  and  abandoned  entirely 
the  feudal  military  system.  Everything  was  bent  to  strengthen 
the  military  establishment,  which  absorbed  five-sevenths  of 
the  total  revenues.  Rigid  discipline  was  imposed,  not  only  on 
the  army  but  on  all  employed  in  the  civil  service,  whose  duties 
were  strictly  defined  and  derelictions  severely  punished.  The 
long  and  vigorous  reign  of  Frederick  H,  called  the  great, 
1740  to  1786,  witnessed  the  further  development  of  the  mili- 
tary despotism  and  increase  of  the  territory  of  the  kingdom 
at  the  expense  of  Austria  and  Poland.  In  his  contests  with 
Austria,  France  and  Russia,  Frederick  gained  great  victories, 
but  at  fearful  cost  in  human  life  and  misery.  The  seven 
years'  war  witnessed  the  destruction  of  numerous  towns  and 
villages  and  a  decrease  of  half  a  million  in  the  population  of 
the  kingdom,  but  gave  to  the  king  the  title  of  Great.  Freder- 
ick nevertheless  labored  earnestly  to  advance  the  interests 
and  prosperity  of  the  country  in  accordance  with  his  despotic 
ideas,  and  some  of  his  innovations  were  real  reforms.  He 
completely  separated  the  judicial  from  the  administrative  de- 
partments of  government,  abolished  torture  in  trials  and  capi- 
tal punishment  for  inferior  offenses,  confining  executions  al- 
most entirely  to  cases  of  murder.  He  reduced  the  expenses 
af  litigation  and  required  that  every  cause  be  disposed  of 
within  a  year.  He  undertook  a  codification  of  the  Isw,  which 
however  he  was  not  able  to  complete.  He  was  a  vigilant 
master  over  all  the  public  servants,  whom  he  closely  watched 
and  held  to  strict  account.  Himself  an  untiring  worker,  he 
exacted  strict  attendance  to  duty  from  his  subordinates.  In 
matters  of  religion  he  granted  full  liberty  to  each  to  go  to 
heaven  by  any  route  he  chose  to  travel  and  allowed  full  free- 
dom of  discussion.  The  stratification  of  society  he  left  un- 
changed, but  allowed  no  authority  to  the  diets  confiicting  with 


498  EVO.LUT1UN'   OF  (jOVERNMENTS  AND  LAWS 

his  will.  His  successor  ruled  according-  to  the  same  princi- 
ples, but  without  the  vigor  or  ability  of  Frederick. 

Austria  started  as  a  Margravate  of  Charlemagne  and  grew 
in  prominence  and  territorial  extent  at  times.  In  1453  it  was 
raised  to  the  rank  of  an  archduchy.  The  frequent  choice  of 
emperors  'from  the  ruling  house  of  Austria  gave  it  a  marked 
prominence  among  the  German  states,  and  the  history  of  the 
rulers  of  Austria  is  largely  identical  with  that  of  imperial 
Germany.  The  Thirty  Years'  war  and  the  growth  of  Protes- 
tantism in  the  north  weakened  the  influence  of  Austria  in 
Northern  Germany,  and  was  the  entering  wedge  wdiich  ulti- 
mately resulted  in  the  destruction  of  the  empire.  As  a  result 
of  its  struggles  and  negotiations,  by  171 3  Austria  had  190,000 
square  miles  of  territory  and  29,000,000  people.  The  reign 
of  Maria  Theresa,  who  ascended  the  throne  in  1740  and  ruled 
till  1780,  witnessed  great  w^ars,  including  the  Seven  Years' 
war  with  Frederick  of  Prussia,  but  w^as  a  i>eriod  of  great 
prominence  for  Austria,  which  added  still  further  to  its  terri- 
tory. Her  husband  Francis  I  was  chosen  Emperor  (1745  to 
1765),  but  his  imperial  powers  were  completely  overshadowed 
by  those  of  his  wife  as  ruler  olf  Austria.  She  was  not  only  a 
vigorous  head  of  the  military  power,  but  a  reformer  in  civil 
affairs,  though  by  despotic  methods.  Her  son  and  successor 
Joseph  II  attempted  sweeping  reforms,  which  however  he 
w^as  unable  to  carry  out. 

At  the  breaking  out  of  the  French  revolution  nearly  every 
Aestige  of  ancient  popular  government  had  been  obliterated. 
Arbitrary  power  was  everywdiere  exercised  under  a  claim  of 
divine  right  to  rule,  and  backed  by  military  force.  In  the 
south  there  was  no  constitutional  check  on  the  absolute  power 
of  the  ruler  of  Austria,  save  in  Hungar\%  and  this  was  little 
regarded.  In  the  north  the  Prussian  despotism  was  vigor- 
ously maintained,  and  in  the  minor  principalities  equally  arbi- 
trary and  despotic  maxims  were  followed.  Yet  the  traditions 
of  ancient  liberties  still  survived,  and  the  people  w^ere  a 
strong  and  vigorous  race,  fitted  for  rapid  advancement  under 
favorable  conditions.  As  a  result  of  the  i>eculiar  political 
organization  of  Germany  the  superior  nobility,  w'ho  were  the 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  499 

real  governing  power,  jealously  guarded  their  social  rank, 
and  by  their  code  of  Fiirstcnrccht  valid  marriages  of  those 
ranking  as  the  immediate  vassals  of  the  emperor  could  only 
be  made  with  those  of  equal  rank.  Offspring  by  marriage 
with  the  inferior  or  mediate  nobility  were  treated  as  illegiti- 
mate. The  hereditary  political  power  of  the  margrave,  duke 
or  other  titled  prince,  passed  by  the  rule  of  primogeniture,  as 
did  the  lands  held  in  feudal  tenure  from  the  crown,  but  allo- 
dial lands  and  personal  estates  were  ecpially  divided  among 
the  sons,  or  in  some  instances  the  daughters  also  took  a  share, 
sometimes  less  than  that  of  a  son.  All  the  children  however 
ranked  as  nobles  of  inferior  degree.  The  inferior  nobility 
were  no  less  tenacious  oif  their  social  rank  than  the  princes. 
The  rule  of  inheritance  of  rank  by  all  the  children  has  re- 
sulted in  great  multiplication  of  the  lesser  nobility,  many  of 
whom  are  exceedingly  poor.  Prior  to  the  Thirty  Years'  war 
the  petty  lords  wielded  considerable  power  and  political  in- 
fluence through  the  diets,  but  the  long  struggle  left  them 
shorn  of  their  importance,  except  as  they  were  the  holders  of 
estates.  As  landholders  they  had  valuable  privileges.  They 
were  judges  of  all  matters  of  dispute  between  tenants  of  their 
estates,  and  exempt  from  taxes  and  from  having  soldiers 
quartered  on  them.  They  had  the  right  to  settle  tradesmen 
on  their  estates  in  opposition  to  the  town  guilds.  They  en- 
joyed exemption  from  that  severity  of  punishment  w'hich  was 
visited  on  offending  peasants. 

The  system  of  land  tenures,  prevailing  at  the  time  oif  the 
French  Revolution  and  still  unchanged  in  many  parts,  ex- 
hil)its  many  peculiarities,  resulting  from  ancient  ideas  and 
conditions.  The  village  system  with  many  modifications  was 
common  throughout  Germany,  especially  in  the  south  and 
among  the  Slavonic  people.  Whether  the  land  was  allodial  or 
held  by  feudal  tenure  under  a  lord,  in  many  places  all  land, 
except  that  immediately  about  the  dwellings,  was  held  in 
cr)mmon  and  subject  to  changing  (xxmpancy  by  ]>criods  of 
\arving  length.  Pasture  and  woodlands  were  usually  used 
in  common,  the  tilled  land  only  being  divided.  Tn  other  places 
the  cultivated   land   was  divided   and  held   in   severalty,   but 


500  EV0.LUT10N   OF  GOVERNMENTS  ANID  LAWS 

without  power  of  alienation  by  the  owner  without  the  consent 
of  all  who  might  be  entitled  to  inherit  it,  and  the  balance  was 
used  in  common.  Various  regulations  were  made  with  refer- 
ence to  the  construction  of  dwellings  and  the  division  of  the 
land.  In  some  places  the  village  is  built  along  a  single  street, 
and  the  land  cut  in  long  strips  extending  back  from  the 
dwellings.  In  others  the  dwellings  are  in  a  cluster  and  the 
land  divided  so  as  to  assign  to  each  his  three  fields,  to  be 
tilled  according  to  the  prevailing  three  field  system  of  rota- 
tion of  crops.  Where  the  system  of  permanent  (nvnership  of 
these  fields  obtains,  whenever  cultivation  is  extended  over 
reclaimed  -forests  or  other  common  lands,  a  division  oif  these 
is  made,  and  each  receives  his  allotment.  As  a  result  of  in- 
heritance still  further  divisions  are  made,  and  thus  it  has 
come  to  be  the  case  that  much  of  the  land  is  divided  into  ex- 
ceedingly small  patches,  and  one  owner  may  have  a  great 
number  of  them  scattered  about.  In  some  cases,  for  mutual 
protection,  the  peasants  gathered  into  larger  villages,  and  the 
lands  they  held  were  scattered  over  a  considerable  district. 
In  some  places  all  the  lands  have  been  divided,  while  in  others 
there  are  still  common  pasture,  forest  and  meadow  lands. 
In  the  northern  and  western  parts  the  village  system  is  not 
general ;  the  farms  are  in  compact  bodies,  with  dwellings 
scattered  over  the  country.  This  has  been  promoted  by  the 
entailment  of  estates,  by  a  custom  of  leaving  the  land  to  a 
single  heir  and  by  restriction  of  the  numbers  of  children. 

The  minute  subdivision  of  lands  has  been  regarded  as  an 
evil,  and  in  some  of  the  states  methods  have  been  adopted  by 
the  government  of  reapportioning  the  districts  so  as  to  throw 
all  the  lands  oif  an  owner  into  a  compact  body.  This  has 
been  found  a  somewhat  difficult  task  to  perform  satisfactorily. 
While  some  of  these  peasant  holdings  were  free  or  allodial, 
as  a  rule  they  were  under  a  lord,  who  not  only  took  a  share, 
of  the  produce,  but  was  also  accustomed  to  compel  the  tenant 
to  labor  for  him  on  his  separate  lands  a  portion  of  the  time. 
Such  service  was  called  frohn,  and,  as  the  lord  was  himself 
the  judge  of  all  matters  of  right  on  his  estate,  was  often  very 
oppressively  exacted.     The  condition  of  the  peasantry   from 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  501 

the  establishment  of  the  feudal  system  till  the  revolution  was 
essentially  that  of  serfs,  and  those  claiming  allodial  tenures 
were  loaded  with  taxes  or  pillaged  in  one  form  or  another,  so 
that  their  condition  was  hardly  distinguishable  from  that  of 
the  feudatories.  Poverty  and  oppression  in  peaceful  times, 
ruin  and  death  in  war,  have  been  the  lot  of  the  German  peas- 
ants for  many  centuries.  In  the  cities  the  ancient  democratic 
systems  had  been  crushed,  and  all  political  power  was  in  the 
hands  of  the  princes  and  nobility. 

In  the  development  of  its  system  of  laws  the  situation  of 
(iermany  was  somewhat  peculiar.  After  Charlemagne  no 
Emperor  was  sufficiently  powerful,  and  at  the  same  time  sulf- 
ficiently  interested  in  general  rules  of  law,  to  undertake  much 
legislation  for  the  government  of  the  empire.  The  feudal 
system  furnished  the  basis  of  land  tenures,  and  the  peasantry 
had  to  submit  to  the  rulership  of  their  lords,  whose  will,  what- 
ever it  might  be,  was  law.  On  church  lands  the  rule  of  the 
clergy  and  heads  of  monastic  institutions  was  probably  rather 
more  mild  on  the  whole  than  that  of  the  barons,  but  was  gen- 
erally oppressive.  For  the  government  of  trade  the  Roman 
law  was  studied  and  followed  with  more  or  less  modifications. 
During  the  times  when  the  free  cities  maintained  their  leagues, 
they  established  their  own  rules  and  customs,  but  with  the 
founding  oif  schools  came  the  study  of  the  learning  of  the 
Greeks  and  Romans,  and  the  principles  of  the  Roman  law 
were  taken  as  guides  in  the  administration  of  justice. 

The  history  and  government  of  Poland  is  closely  allied  and 
interwoven  with  that  of  Germany,  though  the  stratification  of 
its  society  is  somewhat  diiTerent.  In  the  earliest  times  of 
which  we  have  any  accounts  there  were  three  orders,  i.  The 
ii()l>les,  who  were  the  rulers ;  2.  Peasants,  personally  free  but 
bound  to  do  fixed  services  for  their  lords;  3.  Serfs,  who  were 
the  property  of  their  masters  and  under  their  absolute  power. 
In  965  King  Mieczyslaw,  in  order  to  gain  the  hand  of  the 
(laughter  of  the  Bohemian  king,  consented  to  become  a  Chris- 
tian and  be  baptized.  He  thereupon  proceeded  to  convert  the 
nation  bv  commanding  all  Poles  to  be  baptized.  The  Poles 
came  in  frequent  contact  with  the  Russians  in  the  east  and 


502  EVQLUTIOX  OF  GOVERNMENTS  AND  LAWS 

the  Germans  on  the  west.  In  these  struggles  they  were  on 
the  whole  fairly  successiful  in  maintaining  their  position,  and 
by  the  time  of  Casimir  III  Poland  held  high  rank  among  the 
states.  In  1364  the  foundation  of  the  university  of  Cracow 
was  laid  by  Casimir,  whose  plans  with  reference  to  it  were 
afterward  carried  forward  by  Queen  Jadwiga.  In  1347  l)y 
the  statute  of  Wislica  many  matters  were  regulated.  The 
duty  of  a  palatine  was  to  lead  the  troops  of  his  palatinate  m 
war  and  to  preside  over  the  diet  of  the  nobles  of  his  province. 
Under  the  palatines  were  castellans  who  were  their  lieutenants 
in  war.  Palatines  and  castellans  were  senators  and  judicial 
officers  who  held  court  in  their  provinces.  Niintii,  deputies, 
were  chosen  from  the  various  districts  of  each  palatinate. 
The  senators,  oif  whom  sixteen  were  ecclesiastics,  all  sat  in 
one  house.  By  this  statute  the  power  of  life  and  death,  there- 
tofore exercised  by  the  nobility  over  the  lives  of  their  serfs, 
was  taken  away,  and  a  peasant  ill  treated  by  his  lord  was 
allowed  to  remove  to  the  estate  of  another.  The  inhabitants 
of  the  towns,  of  whom  many  were  Germans,  were  governed 
by  the  law  of  Magdeburg,  to  administer  which  a  Teutonic 
tribunal  was  established  at  Cracow,  consisting  of  a  judgq 
versed  in  foreign  law  and  seven  citizens  nominated  by  the 
starosta.  It  is  said  that  before  this  there  were  no  written 
laws  in  Poland.  The  national  diet  was  made  up  of  the  nobles 
and  upper  clergy  and  some  of  the  prominent  citizens.  It 
soon  not  only  determined  questions  oif  peace  and  war  but  also 
elected  the  kings.  The  diet  chose  as  Casimir's  successor  Louis, 
King  of  Hungary.  In  1369  by  the  marriage  of  Queen  Jad- 
wiga with  Jagiello  Prince  of  Lithuania  the  two  countries  were 
united.  He  was  not  a  Christian,  but  became  one  and  pro- 
ceeded to  convert  his  Lithuanian  pagan  subjects  by  command- 
ing them  to  be  baptized.  In  a  diet  held  in  1496  it  was  or- 
dained that  thereafter  no  peasant  or  burgher  should  hold  office 
in  the  church,  and  the  peasantry  were  obliged  to  submit  their 
causes  to  courts  presided  over  by  their  noble  masters.  It  was 
also  decreed  that  no  king  should  declare  war  without  the 
consent  of  the  diet.  Shortly  after  this  burghers  and  peasants 
were  prohibited  from  owning  lands.     In  the  diets  the  Slavonic 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  503 

principle  of  unanimity  of  decision  was  adopted.  This  proved 
not  merely  inconvenient  but  disastrous,  and  rendered  it  pos- 
sible to  prevent  action  on  any  matter  of  importance  by  merely 
corrupting  one  member.  When  majorities  were  effectively 
checked  by  minorities,  fights  and  bloodshed  often  followed. 
Nowhere  was  the  rule  of  an  oligarchy  more  complete  and 
tyrannical,  and  nowhere  else  was  there  ever  more  turbulence 
and  discord  among  the  governing  body.  In  1529  Sigismund 
published  his  code  of  laws  in  the  White  Russian  language. 
Though  by  the  pacta  convcnta,  exacted  from  Henry  oif  Valois 
when  he  was  elected  to  the  Polish  throne,  the  power  of  the 
King  had  been  closely  limited,  on  the  choice  of  Stephen  Batory 
as  his  successor,  after  Henry's  return  to  France  to  become  its 
king,  still  further  restrictions  were  imposed  by  the  nobles. 
Sixteen  senators  were  chosen  at  each  diet  to  attend  and 
counsel  with  the  king,  and  no  decree  could  be  issued  bv  him 
without  their  consent.  The  right  of  final  appeal  to  the  king 
was  taken  away,  and  his  jurisdiction  was  limited  to  a  small 
district  about  his  palace.  The  local  diets  of  the  palatinates 
elected  their  judges,  who  constituted  courts  of  final  jurisdic- 
tion over  causes  between  the  nobles.  In  161 7  Wladislaw,  son 
of  King  Sigismund  of  Poland,  was  chosen  Czar  of  Russia, 
but  he  was  soon  driven  out.  In  1652  a  single  member  of  the 
diet  by  his  veto  prevented  a  resolution  in  which  all  the  rest 
concurred.  Afterward  action  was  similarly  defeated  on  many 
rK:casions.  Under  John  Sol)ieski  the  Poles  took  a  leading  part 
in  the  great  battles  with  the  Turks  which  resulted  in  their 
crushing  ddfeat  before  Vienna  in  1683.  From  this  time  the 
power  of  Poland  rapidly  declined.  In  1772  the  first  partition 
was  made,  in  which  Prussia.  Austria  and  Russia  each  took 
]K)rtions  of  its  territory,  and  in  1846  the  last  vestiges  of  its 
independent  national  existence  were  obliterated  by  its  great 
neighlx)rs.  The  constitution  and  characteristics  of  Polish  so- 
ciety were  peculiar.  It  had  law  Init  no  justice,  a  king  with 
little  real  power  and  a  sorely  oppressed  peasantry.  The  no- 
bility, who  alone  possessed  real  power,  surrounded  themselves 
with  their  retainers  and  lived  in  luxury  and  vice  from  the 
labors  of  their  serfs.     In  their  associations  with  each  other 


504  EVOLUTION  OF  GOVERNMENTS  ANO  LAWS 

they  were  turbulent,  quarrelsome  and  jealous,  yet  in  contests 
with  kings  and  peasants  they  zealously  maintained  the  unjust 
privileges  of  their  order.  Poland  presented  compactly  the 
undivided  rule  of  the  nobility,  which  throughout  Germany 
was  intersi>ersed  with  democratic  cities  and  peasant  communi- 
ties maintaining  more  or  less  independence  in  the  manage- 
ment of  their  local  affairs.  Its  loss  of  national  life  was 
mainly  due  to  the  lack  of  moral  basis  for  the  authority  ex- 
ercised by  the  nobility  and  the  want  af  a  recognized  theory 
binding  the  people  together  for  their  mutual  protection. 
Gross  oppression  of  the  multitude  destroyed  the  military 
efficiency  of  the  common  people,  and  the  rivalries,  ambitions 
and  jealousies  of  the  nobility  unfitted  them  for  cooperation 
against  foreign  enemies. 

In  its  educational  institutions  Germany  took  high  rank  at 
the  time  of  the  French  Revolution,  most  of  her  great  universi- 
ties having  been  founded  long  before  that  time.  Religious 
toleration  and  a  genuine  desire  for  knowledge  tended  to  favor- 
able conditions  for  the  dissemination  of  political  truths. 
While  German  rulers  were  alarmed  at  the  uprising  in  France 
and  arrayed  themselves  on  the  side  of  kingly  rule,  there  was 
much  resi>onse  among  the  people  to  the  demand  for  liberty, 
equality  and  fraternity.  With  the  cry  of  "war  to  the  palace 
but  peace  to  the  cottage,"  Napoleon  was  able  to  recruit  his 
armies  on  German  territory  and  to  attach  many  of  the  smaller 
states  to  his  interests.  Though  himself  a  military  despot, 
Napoleon  succeeded  in  posing  as  the  leader  of  the  multitude 
in  an  attack  on  arbitrary  power,  and  his  successes  were  largely 
due  to  the  rising  spirit  of  the  commonalty.  During  the 
progress  of  the  wars  with  Napoleon  reforms  were  freely 
promised  by  German  rulers,  and  in  1807  under  the  lead  of 
Stein  Prussia  established  a  responsible  ministry  as  the  confi- 
dential advisers  and  executive  agents  of  the  king,  abolished 
serfdom,  removed  the  disability  to  own  land  from  the  common 
people,  and  allowed  to  all  a  free  choice  oif  occupation.  By  the 
Stadteordenung  of  1808  the  right  of  local  self-government 
was  restored  to  the  cities,  and  the  system  of  administration 
was  thoroughly  reformed.     In    18 to  Hardenberg  broke  the 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  505 

bond  between  the  peasants  and  landed  aristocracy  by  making 
the  tenants  absohite  owners  of  two-thirds  their  holdings,  leav- 
ing the  other  third  to  the  landlord.  Yet  more  important  was 
the  establishment  of  the  great  common  school  system  under 
the  guidance  of  William  von  Humboldt,  which  has  been  of 
such  incalculable  benefit.  The  military  system  was  again  re- 
modelled so  as  to  include  in  the  army  the  whole  body  capable 
of  bearing  arms.  In  the  final  struggle  by  which  Napoleon  was 
overthrown,  Prussia  played  a  leading  part.  Thorough  re- 
forms were  also  made  in  the  civil  administration,  and  ap- 
pointments were  based  on  competitive  examinations. 

In  Austria,  though  some  concessions  were  made  tending  to 
relieve  the  oppressed  peasantry,  and  more  were  promised,  no 
marked  change  of  system  was  inaugurated. 

In  1806  Napoleon  succeeded  in  forming  the  Confederation 
of  the  Rhine,  composed  of  central  and  southern  states  with 
himself  as  protector,  thus  detaching  from  Austria  and  Prus- 
sia a  large  German  element.  After  the  first  peace  of  Paris  a 
congress  of  German  state  was  held  at  Vienna  to  rearrange  the 
political  constitution  of  Germany.  Prussia  was  given  part  of 
Saxony,  the  Rhineland  and  Swedish  Pomerania,  Austria  took 
Salzburg,  Vorolberg  and  Tyrol.  The  members  of  the  Rhenish 
confederation  were  mostly  left  with  their  territory  intact,  the 
kingdom  of  Westphalia  and  other  states  established  by  Napol- 
eon being  abolished.  Hanover  was  made  a  kingdom,  Weimer, 
Mecklenburg  and  Oldenburg  grand  duchies,  and  Lubeck, 
Bremen,  Hamburg  and  Frankfort  free  cities.  The  German 
Bund  was  formed,  composed  of  thirty-nine  states,  each  inde- 
pendent in  its  local  affairs.  The  governing  body  was  a  Diet 
in  which  each  state  was  represented,  sitting  at  Frankfort 
under  the  presidency  of  the  Austrian  plenipotentiary.  The 
Diet  was  authorized  to  settle  all  disputes  between  members  of 
the  confederation,  neither  of  which  was  allowed  to  make  war 
on  another,  nor  to  form  alliances  against  the  interests  of  any 
other  member.  It  was  further  provided  that  each  state  should 
establish  a  constitutional  system  of  government. 

The  restoration  of  the  Bourbons  to  power  in  France  was 
followed  by  a  reaction  in  which  the  kings  again  asserted  their 


5o6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

arbitrary  powers.  Austria,  tinder  the  guiding  hand  of  Met- 
ternich,  continued  to  be  a  harsh  and  grinding  despotism,  ruhng 
over  a  diverse  population  of  Germans,  Magyars,  Slavs,  Ital- 
ians and  others.  No  steps  were  taken  to  secure  popular 
representation  or  substantial  justice  to  the  lower  stratum  of 
society.  Neither  did  Prussia  proceed  to  form  a  constitutional 
government,  though  a  number  of  provincial  diets  were  ap- 
pointed. The  government  soon  began  to  if  ear  the  march  of 
liberal  ideas  at  the  schools,  and  in  1819  a  conference  of  the 
ministers  resulted  in  issuing  a  decree  placing  the  universities 
under  police  supervision  and  providing  for  rigid  censorship 
of  publications.  A  commission  was  also  appointed  to  detect 
secret  political  societies.  In  Nassau,  Weimar,  Bavaria,  Baden 
and  Wiirtemberg  constitutions  were  granted  which  resulted 
in  checking  the  arbitrary  rule  but  little.  The  reactionists  main- 
tained their  ground  till  1830,  when  constitutional  govern- 
ments were  estal^lished  in  Hanover,,  Brunswick,  Saxony  and 
Hesse-Cassel,  and  freedom  of  the  press  was  granted  in  the 
other  constitutional  states.  The  main  advance  made  through 
the  medium  of  the  Diet  w^as  in  the  abolition  of  trade  restric- 
tions and  the  foundation  of  the  Zollvcrcin,  in  which  all  the 
states  but  Austria  joined.  In  1847,  to  prevent  a  popular  ris- 
ing which  seemed  threatening,  Frederick  William  IV  of  Prus- 
sia summoned  to  Berlin  a  diet,  made  up  of  representatives  of 
the  provincial  diets,  which  formulated  its  demands  ifor  popu- 
lar representation  in  government,  but  the  king  refused  to 
abate  his  claims  of  power  to  rule  by  right  Divine.  In  the 
following  year  a  popular  convention  was  held  at  Mannheim, 
at  which  four  fundamental  reforms  were  demanded, — free- 
dom of  the  press,  trial  by  jury,  national  armies,  and  popular 
representation.  These  demands  were  universally  adopted  by 
the  liberals,  and  within  a  few  days  thereafter  there  was  a 
liberal  ministry  in  each  of  the  small  states.  In  Austria  Met- 
ternich  was  dismissed,  a  new  cabinet  for  Hungary  appointed 
and  constitutional  government  promised.  In  Prussia  there 
was  a  popular  uprising,  and  Frederick  William  promised 
compliance  with  the  demand  for  constitutional  government. 
An  assembly  was  summoned,  at  which  the  demands  of  the 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  507 

rdformers  were  discussed.  At  last  the  king  dissolved  the 
assembly,  and  on  Dec.  5,  1848  granted  a  constitution  and 
gave  orders  for  the  election  of  a  representative  chamber.  In 
the  meantime,  at  a  preliminary  meeting  held  at  Heidelberg,  a 
call  was  made  for  all  Germans  who  were  or  at  any  time  had 
been  members  of  the  Diet  to  meet  at  Frankfort  to  consider  the 
subject  of  national  reforms.  About  500  accepted  the  invi- 
tation and  convened.  After  long  discussion  and  the  failure 
of  many  projects  for  a  compact  German  state,  a  scheme  was 
adopted  and  accepted  by  a  number  of  states  under  the  name 
of  The  Union,  and  on  March  20,  1850  a  parliament  consist- 
ing of  two  houses,  chosen  under  the  arrangement,  met  at 
Erfurt.  Austria  again  headed  the  reactionists,  and  under  her 
leadership  representatives  oif  the  states  met  at  Frankfort  on 
Sept.  4,  1850,  and  proceeded  to  act  as  the  restored  Diet.  Prus- 
sia stood  at  the  head  of  the  Union,  Austria  of  the  old  Bund. 
Prussia  and  its  supporters  however  soon  yielded,  and  from 
June  12,  185 1,  the  old  Diet  was  recognized  and  went  on  with 
its  sittings  as  before  and  the  Union  disappeared.  Following 
the  outbursts  of  1847  ^"^^  1848  was  a  period  of  reaction  in 
which  political  ofifenders,  i.e.  those  opposing  arbitrary  power, 
were  severely  treated,  and  petty  despotism  again  appeared 
triumphant  notwithstanding  the  constitutions.  In  1864  Prus- 
sia took  Schleswig,  Holstein  and  Lauenburg  from  Denmark 
by  force.  In  1866  the  superiority  of  the  military  establish- 
ment of  Prussia  over  that  of  Austria  was  demonstrated  in  a 
most  remarkable  campaign  begun  June  14  and  ended  July  3 
by  the  battle  of  Koniggratz,  in  which  Austria  was  completely 
humiliated.  Thereupon  Prussia  annexed  Hanover,  Hesse- 
Cassel,  Nassau,  Frankfort,  Schleswig  and  Holstein.  All  states 
north  of  the  Main  were  forced  into  a  North  German  con- 
federation with  Prussia  at  its  head.  Stej)s  were  taken  for 
the  formation  of  a  confederate  parliament,  but  the  war  with 
I'rance  in  1870  cleared  the  way  for  the  present  empire.  On 
Jan.  18,  1871  in  the  palace  of  Versailles  and  in  the  presence 
of  a  great  assemblage  of  German  princes  and  officers  the 
Prussian  king  was  proclaimed  emperor  of  Germany.  The  ex- 
isting German  empire   was  thereu[)on  established   and   sane- 


5o8  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

tioned  by  Austria  and  tlie  confederate  parliament.  On  March 
21,  1 8/ 1,  the  Diet  met  at  Berhn  and  the  constitution  of  the 
North  German  confederation,  which  had  been  accepted  in 
1867  by  a  Diet  elected  by  general  ballot,  was  extended  and  re- 
vised to  meet  the  changed  conditions.  By  this  constitution 
all  the  German  states,  except  those  included  with  Austria, 
Hungary,  Holland  and  Belgium,  the  two  last  named  of  which 
of  late  have  not  been  treated  as  strictly  German,  became  con- 
solidated in  the  new  German  Empire. 

The  present  constitution  was  promulgated  April  16,  1871,  by 
the  Kings  of  Prussia,  Bavaria  and  Wiirtemberg  and  the 
Grand  Dukes  of  Baden  and  Hesse.  It  defines  the  territory  oif 
the  empire  and  gives  its  laws  precedence  over  those  of  the 
individual  states.  All  laws  are  required  to  be  proclaimed  in 
the  Imperial  Gazette.  A  common  citizenship  is  established 
throughout  all  Germany,  on  which  no  state  may  place 
limitations. 

The  following  matters  are  under  the  legislative  control  of 
the  empire;  matters  of  domicile,  citizenship,  passports,  trade 
and  industry,  custom  duties,  commerce,  regulation  of  weights, 
measures,  coinage  and  the  emission  of  paper  money,  general 
banking  regulations,  patents  for  inventions  and  copyrights, 
protection  of  trade  in  foreign  countries  and  organization  of 
the  .  consular  service,  railways,  navigation  on  water  ways 
common  to  several  states,  postal  and  telegraph  affairs,  recipro- 
cal execution  of  judgments  of  one  state  in  another,  the  authen- 
tication of  public  documents,  laws  concerning  notes, 
obligations,  commerce,  crimes  and  legal  procedure,  police 
regulation  of  medical  and  veterinary  matters,  and  laws  re- 
lating to  the  press  and  to  the  right  oif  association. 

The  legislative  power  is  vested  in  the  Federal  Council  and 
Reichstag.  A  majority  of  votes  of  each  body  is  necessary  for 
the  passage  of  a  law.  The  Federal  Council  consists  of  fifty- 
eight  members,  of  which  Prussia  has  seventeen,  Bavaria  six. 
Saxony  and  Wiirtemburg  four  each.  Baden  and  Hesse 
three  each,  Mecklenburg-Schwerin  and  Brunswick  two  each 
and  Saxe-Weimar,  Mecklenburg-Strelitz,  Oldenburg.  Saxe- 
Meiningen,     Saxe-Altenburg,     Saxe-Coburg-Gotha,     Anhalt, 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  509 

Schwartzbtirg-Rudolstadt,  Schwartzburg-Sonderhousen,  Wal- 
deck,  Reuss  (elder  branch),  Retiss  (younger  branch),  Schom- 
berg-Lippe.  Lippe,  Lubeck,  Bremen  and  Hamburg  one 
each,  but  the  vote  of  each  state  must  be  cast  as  a  unit. 
The  Federal  Council  has  a  general  oversight  of  the  execution 
of  the  laws  of  the  empire,  appoints  seven  permanent  commit- 
tees from  its  own  members  and  proposes  laws  to  the  Reichstag. 
Each  member  of  the  Council  has  the  right  to  appear  and  be 
heard  in  the  Reichstag,  but  the  same  person  cannot  be  a  mem- 
ber of  the  Council  and  Reichstag  at  the  same  time. 

The  king  of  Prussia  is  made  president  of  the  Confederation 
with  the  title  German  Emperor  with  power  to  declare  war 
and  conclude  peace,  form  alliances,  make  treaties,  accredit 
and  receive  ambassadors;  but  for  a  declaration  of  war  in  the 
name  of  the  empire  the  consent  of  the  Council  is  required, 
except  in  case  of  attack.  He  convenes  the  Council  and  Reich- 
stag, adjourns  and  closes  them.  The  Council  and  Diet  shall 
be  convoked  annually.  The  Council  may  be  convoked  with- 
out the  Reichstag,  but  the  latter  cannot  be  without  the  Coun- 
cil. The  Chancellor  of  the  empire  presides  in  the  council. 
Bills  laid  before  the  Council  in  the  name  of  the  emperor  and 
adopted  are  presented  to  the  Reichstag  and  advocated  by 
members  of  the  Council  or  by  special  commissioners  appoint- 
ed by  them.  The  Emperor  appoints  and  dismisses  imperial 
officials,  prepares  and  publishes  the  laws  and  supervises  their 
execution.  **The  decrees  and  ordinances  of  the  Emperor 
shall  be  made  in  the  name  of  the  empire,  and  require  for  their 
validity  the  signature  of  the  Imperial  Chancellor,  who  thereby 
takes  upon  himself  the  responsibility  for  them." 

The  members  of  the  Reichstag  are  chosen  by  ballot  for 
three  years'  terms.  An  imperial  official  may  be  elected  to  the 
Reichstag,  but  if  he  accepts  an  office  of  higher  rank,  or  if 
a  member  accepts  a  new  appointment  to  a  salaried  office  of 
the  empire  or  a  state,  he  forfeits  his  seat.  The  proceedings 
of  the  Reichstag  are  public,  and  it  may  propose  laws,  and  has 
power  to  judge  of  the  election  of  its  own  members  and  regu- 
late the  mode  of  transacting  its  business.  A  majority  of  all 
constitutes  a  quorum.    In  matters  not  affecting  the  whole  em- 


Sio  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

pire  only  members  from  the  states  concerned  may  vote.  Mem- 
bers have  a  hmited  privilege  from  arrest  and  draw  no  pay 
as  such.  Germany  forms  a  custom  and  commercial  union 
with  substantially  free  trade  among  its  states,  except  that  the 
Hanseatic  cities  of  Bremen  and  Hamburg  remain  free  ports 
outside  the  union.  Custom  duties  are  regulated  by  the  empire. 
A  number  of  special  provisions  relating  to  taxation  are 
inserted. 

"Art.  41.  Railways,  which  are  considered  necessary  for  the 
defense  of  Germany,  or  in  the  interest  of  general  commerce, 
may,  by  imperial  law,  be  constructed  at  the  cost  of  the  empire, 
even  in  opposition  to  the  will  of  those  members  of  the  union 
through  whose  territory  the  railroads  run,  without  prejudice 
however,  to  the  sovereign  rights  of  that  country ;  or  private 
persons  may  be  charged  with  their  construction  and  receive 
rights  of  expropriation.  Every  existing  railway  company  is 
bound  to  permit  new  railroad  lines  to  be  connected  with  it,  at 
the  expense  of  the  latter.  All  laws  granting-  existing  railway 
companies  the  right  of  injunction  against  the  building  of  par- 
allel or  competitive  lines  are  hereby  abolished  throughout  the 
empire,  without  detriment  to  rights  already  acquired.  Such 
rights  of  injunction  cannot  be  granted  in  concessions  to  be 
given  hereafter."  Provisions  are  made  for  the  operation  of  all 
railroads  in  harmony  and  all  charges  are  subject  to  Imperial 
control.  Art.  48.  "The  post  and  telegraph  system  shall  be 
organized  on  a  uniform  plan  and  managed  as  state  institutions 
throughout  the  German  Empire." 

Art.  50.  "The  Emperor  has  supreme  supervision  of  the 
administration  of  post  and  telegraph." 

Art.  53.  "The  navy  of  the  Empire  is  a  united  one  under  the 
supreme  command  of  the  Emperor." 

The  merchant  marine  is  made  subject  to  regulation  by  the 
Empire. 

Art.  57.  "Every  German  is  subject  to  military  duty,  and 
in  the  discharge  of  this  duty  no  substitute  can  be  accepted." 

Art.  59.  "Every  German  capable  of  bearing  arms  shall  be- 
long for  seven  years  to  the  standing  army."  Three  years  in 
active  service,  four  years  in  reserve.    The  next  eleven  articles 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  511 

also  relate  to  military  affairs  and  contain  among  others  the 
following  provisions : 

Art.  64.  "All  German  troops  are  bound  implicitly  to  obey 
the  orders  of  the  Emperor.  This  obligation  shall  be  included 
in  the  military-  oath." 

Art.  68.  "The  Emperor  shall  have  the  power,  if  public  se- 
curity within  the  federal  territory  demands  it,  to  declare 
martial  law  in  any  part  of  the  Empire ;  and  until  the  publication 
of  a  law  regulating  the  occasions,  the  form  of  the  announce- 
ment, and  the  effect  of  such  a  declaration,  the  provisions  of  the 
Prussian  law  of  June  4,  185 1  shall  be  considered  in  force." 
Arts.  69  to  yiy  inclusive  relate  to  finances. 

Art.  69.  "All  receipts  and  expenditures  of  the  Empire 
shall  be  estimated  yearly,  and  included  in  the  budget.  The 
latter  shall  be  fixed  by  la\y  before  the  beginning  of  the  fiscal 
year." 

Art.  76.  "Disputes  between  the  different  states  of  the  union, 
so  far  as  they  are  not  of  a  private  nature  and  therefore  to  be 
decided  by  the  competent  judicial  authorities,  shall  be  settled 
by  the  federal  council,  at  the  request  of  one  of  the  parties." 

Art.  78.  "Amendments  of  the  Constitution  shall  be  made 
by  legislative  enactment.  They  shall  be  considered  as  rejected 
when  fourteen  votes  are  cast  against  them  in  the  federal  coun- 
cil. The  provisions  of  the  Constitution  of  the  Empire,  by 
which  certain  rights  are  secured  to  particular  states  of  the 
union  in  relation  to  the  whole,  shall  only  be  modified  with  the 
consent  of  the  states  affected." 

An  analysis  df  this  readily  shows  that  the  leading  purpose 
subserved  is  that  of  organization  and  consolidation  of  the 
German  states  into  one  Empire  with  increased  military  effi- 
ciency. There  is  no  article  in  the  whole  instrument  clearly 
framed  to  protect  the  citizens  against  the  usurpation  or  unjust 
use  of  power  by  the  government.  The  Reichstag  as  a  repre- 
sentative bodv  is  the  sole  check  on  Imperial  power.  Its  legis- 
lative powers  are  not  circumscribed. 

To  an  American  it  seems  strange  that  there  is  no  separate 
title  devoted  to  the  Judiciarv.  The  mention  of  courts  is  inci- 
dental and  there  is  not  a  line  establishing  any  independent 


512  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

power  ill  them,  with  the  sole  exception  that  certain  offenses 
affecting  the  state  are  to  be  tried  before  the  Court  of  Appeals 
of  the  three  free  Hanseatic  towns  at  Lubeck.  The  principal 
mention  of  the  courts  is  in  the  latter  part  of  Article  75,  as 
follows :  "More  definite  provisions  as  to  the  competency  and 
the  procedure  of  the  Superior  Court  of  Appeals  shall  be  made 
by  imperial  law.  Until  the  passage  of  a  law  of  the  Empire, 
the  existing  competency  of  the  courts  in  the  respective  states 
of  the  Empire,  and  the  provisions  relating  to  the  procedure  of 
those  courts  shall  remain  in  force. "^ 

Each  of  the  states  included  within  the  empire  except  Alsace, 
Lorraine  and  the  two  grand  duchies  of  Mecklenburg  have  con- 
stitutional governments,  and  the  six  larger  states  have  two 
houses  in  their  legislative  bodies  in  which  the  upper  includes 
the  nobility,  clergy  and  representatives  of  the  wealthy  class, 
and  the  lower  is  made  up  of  representatives  chosen  by  the 
voters. 

In  the  completeness  of  its  military  organization  Germany 
may  fairly  be  accorded  first  place  among  all  the  nations  of  the 
earth.  Every  man  is  subject  to  military  service  and  no  substi- 
tution is  allowed,  every  German  capable  of  bearing  arms  is 
required  to  serve  in  the  standing  army  seven  years  from  the 
age  of  twenty-one  to  twenty-eight.  The  first  three  years  he 
must  spend  in  active  service  and  the  remainder  in  the  reserve. 
Aifter  this  he  belongs  to  the  landwchr  for  five  years  more. 
Those  receiving  a  fixed  standard  of  high  school  training  are 
required  to  serve  actively  only  one  year.  All  males  between 
the  ages  of  seventeen  and  forty-two,  not  included  in  the  above, 
are  members  of  the  landstiirtu,  liable  to  be  called  into  active 
service  in  case  of  invasion.  The  emperor  is  the  commander  of 
this  immense  force,  which  is  most  thoroughly  and  efficiently 
organized  with  officers  of  various  grades  appointed  by  him. 

Of  the  expenditures  of  the  Imperial  Government  the  army 
and  navy  and  military  pensions  have  absorbed  as  high  as 
eightv  per  cent  of  the  total.  This,  however,  does  not  include 
expenditures  in  the  maintenance  and  operation  of  the  rail- 
roads, posts  and  telegraphs,  which  are  paid  from  earnings  and 
leave  a  net  surplus  of  revenue. 

*  Foreign  Constitutions  1894. 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  513 

Education  is  made  compulsory  throughout  the  empire. 
Most  of  the  expenses  of  the  primary  and  secondary  schools 
are  borne  by  the  local  governments,  but  much  is  done  by  the 
imperial  government  to  promote  the  educational  system.  Its 
great  universities  rank  with  the  best  in  the  world.  Many  of 
these  have  endowments  which  go  far  toward  defraying  their 
expenses.  No  other  country  has  done  more  to  distribute 
among  its  people  the  treasures  of  accumulated  knowledge  than 
Germany,  and  none  has  profited  more  from  the  wisdom  of 
such  a  course.  x'\s  a  result  of  its  most  excellent  school  system 
illiteracy  among  its  people  is  almost  unknown,  and  its  great 
universities  and  technical  schools  are  famed  the  world  over 
for  their  thoroughness  and  breadth  of  learning  as  well  as  for 
their  progressiveness.  At  the  head  of  the  judicial  system  is 
the  Reichgericht,  the  judges  of  which,  90  in  number,  are  ap- 
pointed by  the  emperor.  It  is  the  supreme  court  and  court  of 
appeals  ifor  the  empire.  All  inferior  courts  are  courts  of  the 
separate  states,  but  all  are  subject  to  imperial  legislation. 
Small  civil  cases  involving  amounts  up  to  about  $100  are  de- 
cided by  the  Amtsgericht.  Above  is  the  Landesgcricht,  of 
w^hich  there  are  170  in  the  empire,  with  more  extended  juris- 
diction, and  over  this  is  the  Obcr  Landesgericht,  the  highest 
court  of  the  state,  exercising  appellate  jurisdiction.  Petty  of- 
fenses are  tried  by  a  judge  and  two  Schoffcn :  Serious  crimes 
by  judge  and  jury.  Courts  of  arbitration,  presided  over  by  a 
judge,  are  also  provided  for  commercial  causes.  The  system 
of  procedure  is  rather  more  summary  than  that  prevailing  in 
England  and  the  United  States.  The  law  is  studied  as  a  pro- 
fession, and  advocates  i)ractice  before  the  courts.  The  num- 
ber of  lawyers,  however,  in  pro|)orti(m  to  population  is 
relatively  very  small.  The  judges  and  meml)ers  of  the  pro- 
fession bear  high  rank  for  integrity  and  ability,  and  except  in 
rare  ]X)litical  causes,  the  administration  of  justice  is  efficient 
and  creditable.  A  summary  of  the  Civil  Code  which  took 
effect  in  1900  will  be  ifound  in  the  Ap|)endix. 

The  political  history  of  Hungary  is  interwoven  with  that  of 
Austria  and  can  1)est  be  considered  in  connection  with  it. 

The  first  king  of  Hungary  is  called  .St.  Ste|)hen,  and  ruled 


514  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

997  to  1038.  He  was  converted  to  Christianity  and  took 
active  measures  to  convert  his  subjects.  He  was  very  zealous 
in  promoting  the  estabhshment  of  churches  and  monasteries. 
The  king  owned  a  large  part  of  the  lands,  from  which  he  re- 
ceived a  portion  of  the  crops  and  military  service  from  his 
retainers  on  them.  He  also  levied  taxes  on  the  products  of 
the  mines  and  exacted  one-thirtieth  the  price  of  merchandise 
sold  at  fairs,  as  well  as  tolls  on  roads,  bridges  and  ferries. 
Presents  to  the  king  were  also  required  from  the  towns  on 
given  days.  The  power  of  the  king  was  not  that  oif  an  abso- 
lute ruler  over  the  whole  country,  but  resembled  more  a  great 
proprietor's  over  his  estate.  The  Church  and  the  no'bility  ex- 
ercised over  their  domains  substantially  the  same  authority  as 
the  king  over  his.  At  court  the  king  had  his  lord  palatine, 
court  judge,  lord  of  the  treasury  and  minor  officials.  The 
towns  elected  their  own  judges  and  local  officials.  The  labor- 
ers on  the  estates  of  the  king  and  of  the  nobility  w'ere  without 
political  rights,  and  subject  to  the  authority  of  their  lords. 
The  powers  of  the  king  were  not  clearly  defined.  Appeals  lay 
from  the  acts  of  the  nobles  to  the  king,  but  in  their  own 
domains  the  nobles  were  practically  absolute  masters.  The 
authority  of  the  king  was  theoretically  absolute,  but  subject 
in  fact  to  checks  imposed  by  the  nobility.  A  most  remarkable 
document,  bearing  a  strong  resemblance  to  the  English  Magna 
Charta,  is  called  the  "Golden  Bull,"  extorted  from  Andrew  H, 
w^ho  ruled  1205  to  1235,  given  in  the  form  of  a  letter,  by 
which  he  recited  that,  "The  nobles  and  others  in  our  realm 
have  suffered  detriment,  in  many  parts,  of  their  liberties  a? 
established  by  King  St.  Stephen,  through  the  power  of  some 
kings,  who  either  ifrom  anger  revenged  themselves  or  listened 
to  the  counsel  of  wicked  advisers  or  sought  their  own  advan- 
tage." It  then  proceeds  to  ordain  that  the  anniversary  of  the 
sacred  king  should  be  celebrated  at  Stuhlweissenburg:  that  the 
king  should  be  present  in  person  or  by  his  palatine  to  hear 
causes ;  that  all  the  nobles  might  freely  assemble  there ;  that  the 
nobles  should  not  be  detained  or  oppressed  except  by  due  pro- 
cess of  law ;  that  no  taxes  should  be  levied  on  the  estates  of  the 
nobles  or  the  clergy;  that  if  a  noble  die  without  male  issue  his 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  515 

daughters  should  inherit  one-fourth  his  property  and  the  rest  he 
might  dispose  of  as  he  pleased,  in  default  of  which  it  should 
go  to  his  next  of  kin,  but  in  case  he  was  absolutely  without 
kin  then  to  the  king.  If  the  nobles  were  called  on  to  go  out 
of  the  country  to  war  he  must  pay  the  expense.  "The  pala- 
tine shall  be  judge  over  all  the  people  of  our  realm  without 
distinction,  but  in  capital  cases  and  matters  of  property  which 
concern  the  nobles,  the  palatine  shall  not  decide,  without  the 
king's  knowledge" ;  that  foreigners  should  not  be  given  lands 
and  should  not  be  elevated  to  dignities  without  the  consent  of 
the  council  of  the  realm;  that  offices  should  not  be  granted  in 
perpetuity,  and  Ishmaelites  and  Jews  should  be  incapable  of 
holding-  them  "excepting  these  four  great  lords,  the  palatine,  the 
banus,  the  court  judges  of  the  king  and  queen,  no  one  shall 
have  two  dignities  at  the  same  time.  Should,  however,  we  or 
any  of  our  successors  at  any  time  be  disposed  to  infringe  upon 
any  of  these  four  orders,  the  bishops  as  well  as  the  other  lords 
and  the  nobles  of  the  realm  shall  be  at  liberty,  jointly  or  singly, 
by  virtue  of  this  letter,  to  oppose  and  contradict  us  and  our 
successors  forever,  without  incurring  the  penalty  of  treason." 
All  the  burdens  were  of  course  borne  by  the  peasants  and 
laborers.  From  the  fruits  oif  their  toil  the  landed  gentry  lived 
in  idleness  and  drunkenness.  Against  the  oppression  of  the 
lord  the  peasant  could  only  appeal  to  the  lord  himself,  with 
the  chance  of  greater  oppression  for  having  made  complaint. 
In  1 5 14  the  peasants  were  gathered  for  the  crusade.  Many 
of  the  lords  opposed  it  because  they  needed  the  laborers  in  the 
fields.  40,000  of  them  assembled  at  Pesth.  Instead  of  march' 
ing  against  the  Turks,  under  the  leadership  of  George  Dozsa 
they  marched  against  the  nobles.  They  took  many  castles 
and  massacred  such  of  the  nobles  and  their  families  as  fell 
into  their  hands.  The  nobles  finally  rallied  and  under  the 
lead  of  the  vayvode  of  Transsylvania  defeated  the  peasants 
and  captured  Dozsa,  whom  they  placed  on  a  red  hot  iron 
throne  and  crowned  with  a  red  hot  crown  and  gave  a  red  hot 
sceptre.  Many  others  were  tortured  and  killed.  The  diet, 
which  assembled  soon  after,  ordained  the  ])erpetual  servitude 
of  the  peasantry,  and  fixed  them  to  the  soil,  which  before  that 


5i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

time  they  had  been  allowed  to  leave.  At  the  same  session  was 
passed  and  coniirmed  by  the  king  what  is  termed  the  tri-partite 
code,  compiled  by  Stephen  Verboczy  the  chief  justice.  It  ac- 
corded equal  rights  to  all  the  nobles,  who  could  not  be  deprived 
of  liberty  without  due  trial  and  were  exempt  from  taxation 
and  subject  only  to  the  king  and  as  to  the  peasant  it  provided, 
'The  peasant  has  no  sort  of  right  over  his  master's  land  save 
bare  compensation  for  his  labor  and  such  other  rewards  that 
he  may  obtain.  Every  species  of  property  l>elongs  to  the 
landlord,  and  the  peasant  has  no  right  to  invoke  justice  and 
the  law  against  a  noble." 

Austria,  so  long  the  head  of  the  German  Empire,  has  ceased 
to  be  a  part  of  it,  but  is  still  one  of  the  great  states  of  Europe. 
The  past  century  has  witnessed  the  loss  df  much  of  its  terri- 
tory, including  its  possessions  in  Italy,  but  it  still  governs  a 
large  and  exceedingly  rich  district.  When  in  1806  Napoleon 
established  the  confederation  of  the  Rhine  from  sixteen  Ger- 
man States,  the  Emperor  Francis  renounced  the  title  of  em- 
peror of  the  Romans  and  assumed  that  of  Emperor  of  Austria. 
Though  promises  of  reforms  w^ere  made,  Austria  constantly 
recurred  to  its  despotic  methods,  and  lent  its  aid  to  perpetuate 
arbitrary  rulership  throughout  Europe.  The  only  marked 
step  in  advance  during  the  long  reign  of  Francis,  who  died 
in  1835,  was  the  establishment  of  a  system  of  primary  schools. 
Discontent  grew  among  the  people,  and  in  1846  an  insurrec- 
tion occurred  in  Galicia.  This  was  soon  suppressed,  and  the 
dismemberment  of  Poland  was  completed.  In  1848  far  more 
serious  outbreaks  occurred.  Metternich,  the  counselor  df 
tyranny,  resigned  and  went  to  London.  An  imperial  proc- 
lamation was  issued  abolishing  the  censorship  of  the  press, 
establishing  a  national  guard  and  convoking  a  national  as- 
sem'bly.  Under  the  leadership  of  the  members  of  the  uni- 
versity of  Vienna  the  national  guard  and  academic  legion 
organized  a  committee  and  dictated  laws  to  the  government. 
On  May  17,  the  Emperor  Ferdinand  and  his  wife  fled  to  Inns- 
bruck. Uprisings  in  Italy  followed  and  soon  after  in  Bohemia 
and  Hungary  also.  Civil  war  ensued  between  the  imperial 
supporters  and  the  revolutionists,  which  did  not  end  till  130,- 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  517 

000  Russian  troops  invaded  Hungary  in  support  of  the  im- 
perial cause.  The  triumph  of  the  supporters  of  despotic  rule 
was  accompanied  by  the  slaughter  of  great  numbers  in  battles 
and  by  shooting  and  hanging  the  leaders  of  the  revolt  who 
were  captured.  The  congress  organized  by  the  revolutionists 
was  dissolved  and  the  emperor,  of  his  own  motion,  promulga- 
ted a  constitution.  Many  reforms  and  internal  improvements 
were  now  undertaken,  but  the  old  tendency  to  relapse  into 
military  despotism  soon  asserted  itself,  and  on  Jan.  i,  1852,  it 
was  announced  that  the  constitution  was  abolished.  In  1859 
the  combined  forces  of  France  and  Sardinia  drove  the  Aus- 
trians  from  Italy,  and  in  March  i860  the  emperor  promulgated 
a  new  constitution,  by  which  he  declared  that  the  right  to 
enact,  alter  and  abolish  laws  should  thereafter  be  exercised  by 
himself  and  his  successors  only  with  the  cooperation  of  the 
Reichsrath.  This  body  was  established  for  the  empire  and 
to  be  composed  of  representatives  of  the  several  kingdoms  in- 
cluded within  it.  On  Feb.  27,  1861,  it  was  decreed  that  their 
former  constitutions  should  be  restored  to  Hungary,  Croatia, 
Slavonia  and  Transylvania.  At  the  same  time  a  law  was 
promulgated  providing  for  the  representation  of  the  different 
portions  of  the  empire  in  the  Reichsrath,  which  was  made  up 
of  two  bodies,  a  house  otf  peers  and  one  of  deputies.  On  May 
I,  1861,  the  new  Reichsrath  was  formally  opened  by  the  em- 
peror in  a  speech  in  which  he  said,  "that  liberal  institutions 
with  the  conscientious  introduction  and  maintenance  of  the 
principles  of  equal  rights  to  all  the  nationalities  of  his  empire, 
of  the  equality  of  all  his  subjects  in  the  eye  of  the  law,  and 
of  the  participation  of  the  representatives  of  the  people  in  the 
legislation,  would  lead  to  a  salutary  transformation  of  the 
whole  monarchy."  Hungary,  Croatia,  Slavonia  and  Transyl- 
vania declined  to  send  representatives,  claiming  separate  con- 
stitutions. After  the  humiliating  defeat  by  the  Prussians  in 
1866,  the  emperor  turned  his  attention  to  the  improvement  of 
the  affairs  of  his  empire.  The  Hungarians  were  in  passive  re- 
bellion, refusing  to  pay  their  taxes.  In  1865,  the  emperor 
had  recognized  the  necessity  of  self-government  for  Hungary 
in  local  affairs,  and  on  Nov.  19,  1866,  by  an  imperial  rescript, 


5i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

he  promised  the  appointment  of  a  responsible  ministry  and  the 
restoration  of  municipal  self-government.  Baron  Betist,  a 
Saxon  and  a  Protestant,  was  made  prime  minister  of  the  em- 
pire. In  1867  the  Rcichsrath  assembled  at  Vienna,  and  many 
important  measures  of  reform  were  adopted.  On  June  8, 
1867  the  emperor  and  empress  were  crowned  king  and  queen 
of  Hungary  at  Pesth,  at  which  time  pardon  and  amnesty  for 
political  offenses  were  granted.  Religious  toleration  was  ac- 
corded by  the  Reichsrath.  In  1873  the  power  of  choosing 
members  of  the  Rcichsrath  was  transferred  from  the  provin- 
cial diets  to  the  voters. 

Under  its  present  constitution  Austria-Hungary  recognizes 
the  hereditary  succession  to  the  throne  by  primogeniture  in 
the  male  line  of  the  house  of  Hapsburg-Lothringen  and,  on 
the  failure  of  male  heirs,  in  the  female  line.  Two  distinct 
states  are  recognized  as  joined  for  common  ends,  each  having 
its  own  ministers  and  legislative  bodies.  These  are  subor- 
dinate to  a  controlling  body  called  the  Delegations,  consisting 
of  sixty  members  of  each  state,  two-thirds  elected  by  the  lower 
house  and  one-third  by  the  upper  house  of  each  parliamentary 
body.  They  usually  sit  and  vote  in  two  chambers,  one  ifor 
Austria  and  the  other  for  Hungary,  but  in  case  of  disagree- 
ment they  all  sit  together,  and  the  decision  of  a  majority  is 
binding  on  both  states  when  approved  by  the  emperor.  The 
administration  of  the  empire  is  divided  into  three  executive 
departments,  Foreign  Affairs,  Ministry  of  War,  Ministry  of 
Finance.  These  ministers  are  accountable  to  the  Delegations. 
The  Rcichsrath  of  Austria  consists  of  an  upper  and  lower 
house.  The  former  is  composed  of :  First,  Princes  of  the 
Imperial  House;  Second,  Heads  of  noble  houses  of  high 
hereditary  rank;  Third.  Archbishops  and  bishops  with  the 
rank  of  princes;  Fourth,  Liife  members,  .nominated  by  the 
emperor  for  distinguished  services.  The  lower  house  is  com- 
posed of  three  hundred  and  fifty-three  members  elected  by  all 
citizens  possessing  a  small  property  qualification.  The  em- 
peror convokes  the  Rcichsrath  annually  and  nominates  the 
presiding  officers  of  each  house  from  among  its  members.  It 
has  general  legislative  powers  on  matters  of  trade,  finance, 


GERAIANY,  AUSTRIA,  HUNGARY  AND  POLAND  519 

railways,  posts,  telegraphs,  customs,  mints,  military  service, 
etc.  Members  of  either  house  may  propose  new  laws,  which 
must  receive  the  sanction  of  both  houses  and  the  emperor. 
The  executive  functions  for  Austria  are  vested  in  a  Ministerial 
Council  presided  over  by  the  emperor  or  minister  president 
and  made  up  of  ministers  of  the  interior,  of  religion  and  edu- 
cation, finance,  commerce,  agriculture,  national  deifense,  and 
justice.  There  are  also  local  diets  in  the  seventeen  provinces 
with  powers  over  local  concerns. 

The  Hungarian  parliament  also  has  an  upper  and  a  lower 
house,  known  as  the  House  of  Magnates  and  the  House  of 
Representatives.  The  former  is  made  up  of  three  princes  of 
the  reigning  house  having  estates  in  Hungaiy,  thirty-one 
archbishops  and  bishops  and  381  high  officials  and  noblemen. 
The  Lower  House  is  made  up  of  representatives  chosen  for 
three  years  by  all  citizens  paying  a  certain  amount  of  tax  and 
contains  about  450  members.  There  is  a  similar  ministry  in 
charge  of  the  executive  department  for  Hungary  as  in  Austria. 
Great  progress  has  been  made  during  the  last  half  century  in 
the  educational  system,  but  it  is  still  far  behind  that  of  Prussia, 
owing  largely  to  the  domination  of  the  priesthood.  All  child- 
ren from  6  to  12  are  bound  to  attend  the  common  schools. 
There  is  a  fair  system  of  secondary  schools  and  there  are  seven 
universities  at  Vienna,  Gratz,  Innsbruck,  Prague,  Craco>v, 
Lemberg  and  Pesth.  There  are  also  various  technical  schools. 
Austria-Hungary  has  made  great  progress  in  its  railroads, 
owned  by  the  state,  which  are  a  marked  success  and  afford 
excellent  service  at  exceptionally  low  rates.  It  also  owns  and 
operates  the  telegraphs.  The  judicial  system  for  Hungary  is 
independent  of  the  administration.  The  supreme  court  sits  at 
Buda-Pesth.  There  is  a  secondary  court  of  appeals  at  Moros- 
Vacarhely  in  Transylvania.  Under  these  is  a  system  of  what 
are  termed  royal  courts  and  of  circuit  courts. 

On  July  23,  1914,  Francis  Ferdinand,  archduke  of  .-Xustria, 
and  his  wife  were  killed  at  Sarajevo  in  Bosnia  by  a  Serb.  The 
crime  was  charged  to  Servia.  and  Austria  made  demands  with 
which  the  Servian  government  was  unw  illing  to  comply,  but  it 
offered  to  submit  the  matters  in  difference  to  the  Hague  Tri- 


520  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

bunal.  To  this  Austria  refused  to  consent  but  demanded  im- 
mediate acceptance  of  its  terms.  On  July  28,  1914,  Austria- 
Hungary  declared  war  on  Servia.  Other  declarations  of  war 
then  followed  in  rapid  succession :  by  Germany  on  Russia  on 
August  I ;  by  Germany  on  Belgium  on  August  4;  by  England 
on  Germany  on  August  5 ;  Austria-Hungary  and  Russia  de- 
clared war  on  each  other  on  August  6;  England  declared  war 
on  Austria-Hungary  on  August  13,  and  Japan  declared  war 
on  Germany  on  August  23.  Germany  invaded  Belgium  on 
August  2  and  attacked  Liege  on  Aug.  5.  War  with  all  its 
horrors  blazed  on  both  the  eastern  and  western  fronts,  and  one 
after  another  the  leading  nations  of  the  world  took  part  in 
the  conflict,  Bulgaria  and  Turkey  siding  wath  Austria  and 
Germany,  and  Italy,  Roumania  and  others  with  France  and 
Great  Britain.  On  April  6,  191 7,  President  Wilson  signed 
the  resolution  which  had  been  passed  by  Congress  declaring  a 
state  of  war  with  Germany.  Thus  began  the  greatest  war  of 
all  time.  More  men  and  more  of  the  nations  participated  in 
it  than  in  any  other,  and  new  inventions  extended  the  field 
of  military  operations  to  the  air  and  the  depths  of  the  sea  and 
added  new  and  vastly  more  destructive  explosives  and  engines 
of  warfare  than  were  ever  known  before.  Germany  began 
the  work  of  slaughter  and  destruction  with  by  far  the  largest 
and  best  equipped  army  that  had  ever  been  organized,  and  ex- 
pected to  be  able  to  crush  France,  Belgium  and  Russia  before 
England  or  the  other  nations  could  come  to  their  aid  with  any 
considerable  force.  Confident  of  the  strength  of  its  material 
forces  it  flouted  the  moral  sentiment  of  the  world  by  the  un- 
provoked and  ruthless  slaughter  and  destruction  it  wrought 
in  Belgium.  Moral  sentiment,  backed  by  sufficient  material 
force,  at  last  crushed  the  armies  and  navy  of  Germany  and 
its  allies  and  imposed  a  most  humiliating  treaty  of  peace,  which 
was  signed  at  Versailles  on  June  28,  19 19,  though  an  armistice 
had  terminated  the  fighting  on  November  11,  1918.  For  the 
first  time  in  history  a  great  army  of  Americans  fought  in 
Europe  and  became  the  determining  factor  in  a  struggle  be- 
tween European  powers. 

This  war,  for  which  the  imi>erial  houses  of  Hapsburg  and 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  521 

Hohenzollern  are  held  responsible,  resulted  in  the  overthrow 
of  their  dynasties,  the  dismemberment  of  Austria-Hungary 
and  a  substantial  reduction  of  the  area  of  Germany,  Poland 
has  been  resurrected,  and  the  new  state  of  Czecho-Slovakia  has 
been  formed.  On  the  south  Servia  and  Montenegro  with 
much  territory  taken  from  Austria-Hungary  have  been  merged 
into  the  Serb-Croat-Slovene  State.  Greece  has  acquired  much 
territory  from  Turkey  and  Bulgaria,  and  the  boundaries  of 
Roumania  have  been  extended  at  the  expense  of  its  neighbors. 
In  the  north  Danzig  has  been  made  a  free  city,  mainly  for  the 
purpose  of  affording  Poland  an  outlet  to  the  sea.  The  re- 
publics of  Finland,  Esthonia,  Latvia  and  Lithuania  have  been 
formed  from  fragments  of  the  great  Russian  Empire.  Italy 
has  gained  territory  in  the  north  and  on  the  east  coast  of  the 
Adriatic,  and  the  territory  in  Alsace  and  Lorraine,  which  was 
taken  by  Germany  by  the  treaties  of  1871,  is  restored  to 
France.  Part  of  S'chleswig  is  restored  to  Denmark,  and  other 
adjustments  of  boundaries  at  the  expense  of  Germany  have 
been  made. 

The  changes  wrought  in  the  political  affairs  of  the  country 
ruled  by  the  Central  Powers  before  the  war  are  far  more  im- 
portant than  the  mere  changes  in  boundaries.  Contempo- 
raneous with  the  termination  of  the  war  the  German  Emperor 
abandoned  the  throne  and  took  refuge  in  Holland,  and  a  re- 
public was  organized,  which  took  definite  form  on  the  adoption 
of  a  new  constitution.  A  National  Constituent  Assembly  was 
elected  on  January  19,  19 19,  and  convened  at  Weimar.  On 
July  31  it  adopted  a  new  constitution  which  became  effective 
on  August  13,  19 1 9.  This  constitution  effects  so  many  changes 
in  the  fundamental  law  of  Germany  and  contains  so  many 
important,  carefully  prepared  provisions,  that  it  is  worthy  of 
most  careful  study,  and  a  full  copy  of  it  is  given  in  the  appen- 
dix. Full  summaries  of  the  constitutions  of  the  new  republics 
of  Poland  and  Czecho-Slovakia  are  also  given  in  the  appendix. 
These  are  not  so  full  or  complete  as  the  constitution  of  (icr- 
many,  but  each  of  them  exhibits  the  growth  of  liberal  political 
sentiment  and  an  earnest  effort  to  improve  the  organization  of 
society. 


522  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Authorities 

Henderson:     History  of  Germany. 

Henry  Hallam :  History  of  Europe  during  the  Middle  Ages. 

R.  N.  Bain :     Slavonic  Europe. 

James  Fletcher :  History  of  Poland. 

W.  R.  Marfill :  Poland. 

Arminius  Vambery :     Hungary. 

Encyclopaedia  Britannica. 

Continental  Legal  History  Series,  vol.  I. 


CHAPTER  XXI 

Holland  and  Belgium 

The  low  wood  and  marsh  lands  near  the  lower  Rhine  were 
part  of  the  Prankish  Empire.  In  the  time  of  Charlemagne,  in 
accordance  with  his  general  policy,  it  was  divided  into  land- 
schafts  and  gaiis  ruled  over  by  dukes  and  counts;  each  gau 
had  its  chief  town,  surrounded  by  a  wall,  wherein  the  count 
administered  justice.  The  gaiis  were  divided  into  marks  or 
villages,  in  which  a  headman  acted  as  judge  in  minor  causes. 
The  sovereignty  over  this  territory  alternated  between  French 
and  German  overlords.  The  northmen  also  invaded  and  deso- 
lated it.  The  piratical  incursions  of  the  vikings  and  the  ex- 
posed situation  of  the  country  caused  the  people  to  gather  into 
towns  for  mutual  defense.  These  became  sanctuaries,  not 
merely  for  freemen,  but  serfs  escaping  from  the  estates  of  the 
nobles  were  also  accorded  freedom  and  protection.  Trade, 
manufactures  and  other  characteristics  of  town  life  developed, 
and  the  people  soon  built  ships  and  profited  from  commerce 
and  fisheries.  From  about  A.D.  looo  the  history  of  Holland 
begins  to  take  definite  form  under  its  counts,  whose  allegiance 
shifted  according  to  changing  circumstances  from  the  French 
kings  to  the  German  emperors,  but  with  little  real  control 
from  either. 

William  I,  who  died  in  1224,  granted  charters  to  several  of 
the  towns,  securing  them  in  their  liberties  and  providing  for  a 
regular  administration  of  justice.  Under  Floris  V  the  Hol- 
landers took  part  in  the  strife  between  the  French  and  English 
kings  in  aid  of  the  latter,  and  in  return  gained  valuable  trading 
and  fishing  privileges  by  treaty.  Marked  characteristics  oif 
the  early  society  were  the  independent  and  commercial  spirit 
of  the  towns  and  the  resistance  of  the  claims  of  the  nobility 
by  the  burghers.    The  counts  from  time  to  time  were  induced 

^2i 


524  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

to  grant  charters  detining  the  rights  of  the  towns.  By  about 
1300  the  imperial  authority  ceased  to  have  any  recognition, 
and  Holland  took  its  place  as  an  independent  state.  Prior  to 
this  time  for  about  400  years  the  real  power  had  been  exer- 
cised by  a  vigorous  line  of  counts,  who  appointed  bailiffs  over 
the  country  districts  and  sellouts  as  judges  in  the  towns. 
When  matters  of  great  interest  to  a  city  arose,  the  people  were 
summoned  into  the  public  square  by  ringing  the  great  town 
bell,  and  then  they  decided  the  question  by  vote.  Justice  was 
administered  by  a  man's  peers  in  accordance  with  the  special 
customs  of  Franks,  Saxons  and  Frisians.  The  supplies  of  the 
count  were  furnished  by  taxation,  which  fell  mainly  on  the 
towns  and  early  took  the  iform  of  contributions  in  return  for 
protection,  not  merely  against  foreign  foes,  but  against  the 
extortions  of  the  lesser  nobility,  and  in  their  corporate  privi- 
leges against  all.  The  counts  usually  sided  with  the  burghers 
against  the  nobility.  In  the  fourteenth  century  the  towns  join- 
ed the  Hanseatic  League,  from  which  they  were  ejected  in  the 
fifteenth.  During  the  last  half  of  the  fourtenth  century  civil 
strife  over  the  succession  to  the  countship  and  the  struggle 
between  the  burg-hers  and  the  nobles,  who  formed  the  parties 
of  the  Kabbeljaus  and  Hoeks,  the  "Cods"  and  "Hooks," 
produced  a  state  of  continued  disorder  and  much  fighting.  In 
1436  Holland  passed  under  the  rule  of  Philip  of  Burgundy. 
From  this  time  the  charters  of  the  cities  and  the  liberties  of 
the  burghers  were  treated  with  contempt.  Trade  continued  to 
thrive  under  more  arbitrary  rule,  and  Holland  developed  her 
fisheries  and  her  shipping.  In  the  art  of  printing  and  the 
study  of  the  learning-  and  arts  of  the  ancients  the  people  of 
the  cities  of  the  Netherlands  took  an  early  and  leading-  part. 
The  dukes  aided  in  the  collection  of  manuscripts  and  the 
founding  of  libraries  and  encouraged  painters  and  authors  in 
their  work,  especially  in  Flanders  and  the  Brabant,  which  in 
these  particulars  were  in  advance  of  Holland.  In  1477  on 
her  accession  to  power  the  cities  secured  from  the  Dutchess 
Mary  her  sanction  o'f  the  "Great  Privilege,"  which  affirmed 
the  right  of  the  cities  and  provinces  to  hold  diets,  to  approve 
her  choice  of  a  husband  and  to  have  a  voice  in  any  declaration 


HOLLAND  AND  BELGIUM  525 

of  war.  It  declared  that  natives  alone  should  hold  high  office; 
that  no  new  taxes  should  be  levied  without  the  approval  of  the 
estates;  established  one  high  court  for  Holland,  Zealand  and 
Friesland;  and  made  Dutch  the  official  language.  Though 
Philip  of  Burgundy  convened  the  States  General  in  1464,  it 
was  not  till  after  his  time  that  they  were  allowed  real  power. 
In  Holland  the  nobles  collectively  had  but  one  vote,  though  all 
were  permitted  to  sit  in  the  assembly.  Each  of  the  large 
cities  was  also  entitled  to  one  vote.  The  president  of  the 
states,  styled  the  vogt,  became  an  officer  of  importance. 
Through  marriage  of  Philip  with  Joanna  of  Aragon  the  sov- 
ereignty of  the  Netherlands  was  inherited  by  Charles  V,  king 
of  Spain  and  German  emperor.  During  his  reign  and  that  of 
his  son  and  successor  Philip  was  carried  on  that  long  and 
desperate  struggle  for  civil  and  religious  liberty  by  the  people 
of  the  low  countries  against  the  cruel  and  bigoted  Spaniard. 
Never  has  tyranny  appeared  more  cold  and  heartless  than  that 
exercised  in  the  name  of  religion  by  the  bloody  Duke  of  Alva 
and  the  murderous  tribunals  which  tried  by  torture  and  pun- 
ished with  death  the  iconclasts  and  heretics.  The  charters  of 
the  cities  and  the  rights  of  the  States  General  were  disre- 
garded, and  bloody  executions  by  hundreds  and  by  thousands 
followed.  After  opposition  to  the  Spaniards  had  been  crushed 
out  in  the  provinces,  the  Dutch  took  their  ships  and  preyed  on 
Spanish  commerce.  In  1572  the  ''Water  Beggars,"  as  the 
naval  iforce  was  termed,  seized  Briel  at  the  mouth  of  the 
Meuse;  the  struggle  on  land  was  renewed  and  pushed  till  the 
Spaniards  were  driven  out  of  Holland.  In  1581  a  meeting  of 
the  seven  northern  provinces  was  held  at  The  Hague,  which 
declared  their  independence  and  framed  a  constitution  in  ac- 
cordance with  the  principles  of  the  "Great  Privilege"  of  the 
Duchess  Mary,  with  William  of  Orange  as  sovereign.  Under 
the  able  leadership  of  his  son  Maurice  of  Nassau  the  integrity 
of  the  country  was  preserved,  and  Holland  grew  in  importance 
as  a  naval  and  commercial  power,  while  the  rich  provinces  of 
Hainault  and  Brabant  were  desolated  and  almost  depopulated 
as  a  result  of  wars  and  Spanish  misrule.  Toward  the  close  of 
the  sixteenth  centurv  the  Dutch  seamen  began  to  sail  in  distant 


526  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

seas,  and  in  1602  the  Dutch  East  India  Company  was  iformed. 
During  the  progress  of  the  Thirty  Years'  war,  1 618  to  1648,  a 
separate  treaty  of  peace  was  conckided  with  Spain,  by  which 
the  independence  of  the  provinces  was  recognized,  and  Spain 
abandoned  all  her  claims. 

In  1 65 1  a  great  assembly  of  the  provinces  was  held  for  the 
purpose  of  settling  the  system  of  government.  The  Stadt- 
holder,  whose  office  had  been  made  hereditary  in  the  house  of 
Orange,  was  confirmed  as  commander  of  the  military  forces 
and  exclusive  head  of  the  state.  The  legislative  power  was 
vested  in  the  States  General,  made  up  of  deputies  numbering 
at  times  as  many  as  800.  There  was  a  permanent  council  df 
state  and  a  chamber  of  accounts.  Each  province  had  its  own 
stadtholdcr  and  estates.  Each  town  had  its  chief  minister  and 
each  great  city  a  senate;  that  of  Amsterdam  containing  thirty- 
six  burghers,  who  were  charged  with  the  maintenance  of 
order,  the  collection  of  taxes,  and  the  administration  of  jus- 
tice. At  first  the  senate  was  elected  for  life  by  the  whole  body 
of  freemen,  but  from  the  sixteenth  century  vacancies  were 
filled  by  cooptation,  and  it  became  a  close  oligarchy.  Other 
towns  were  similarly  organized.  The  senate  named  the  depu- 
ties to  the  States  General.  The  right  of  making  war  and 
peace,  concluding  alliances,  coining  money  and  levying  taxes, 
was  vested  in  the  States  General.  Though  in  the  defense  of 
their  liberties  and  their  country  the  Dutch  had  many  long  and 
desperate  wars,  their  foreign  policy  was  never  aggressive, 
except  for  the  extension  of  their  trade.  In  this  they  met  with 
great  success  and  were  a'ble  to  obtain  trade  privileges  in  the 
east  not  accorded  to  other  countries.  Their  greatest  acquisi- 
tion was  of  the  rich  island  of  Java,  where  they  rule  over  a 
population  many  times  that  of  Holland  with  very  little  friction 
with  the  natives.  On  the  sea  and  in  manufactures  and  trade 
the  Dutch  continued  to  gain  their  peaceful  victories,  and  also 
carried  on  desperate  struggles  with  Spain  and  England  for 
naval  supremacy. 

No  marked  change  in  the  organization  of  the  state  took 
place  till  the  breaking  out  of  the  French  Revolution.  In  1775 
a  new  constitution  was  formed,  sweeping  away  the  ancient 


HOLLAND  AND  BELGIUM  527 

system  and  establishing  in  its  place  an  elective  representative 
government,  but  change  after  change  followed  in  quick  suc- 
cession. In  1805  Bonaparte  imposed  a  new  constitution  and 
a  ruler,  and  in  the  next  year  made  his  brother  king  o)f  it  as  a 
dependency  of  France.  In  1810  he  annexed  it  as  a  part  of  the 
empire.  After  the  overthrow  of  Napoleon  an  assembly  of 
notables  met  and  recalled  the  prince  of  Orange,  who  had  taken 
refuge  in  England,  and  chose  him  king  under  the  title  of 
William  I.  By  the  treaty  of  Paris  Belgium  was  united  to 
Holland  under  the  hereditary  sovereignty  of  the  house  of 
Orange.  The  king  was  given  full  executive  powers  and  the 
initiative  in  proposing  laws.  He  also  appointed  the  council  of 
state.  The  States  General,  composed  of  two  chambers,  was 
the  legislative  body,  and  similar  representative  assemblies  were 
provided  ifor  each  province.  The  union  of  Holland  and  Bel- 
gium was  not  the  result  of  any  popular  movement,  but  was 
an  incident  of  the  settlement  of  the  balance  of  power  by  the 
leading  states  of  Europe  at  the  conclusion  of  the  Napoleonic 
wars.  Belgium  had  never  had  any  well  defined  national  exis- 
tence, having  been  border  and  disputed  territory  over  which 
the  rulers  of  France,  Germany,  Spain  and  Burgundy  extended 
or  were  forced  to  yield  their  sovereignty  according  to  the 
varying  fortunes  of  war  and  diplomacy.  There  was  never  a 
close  bond  of  sympathy  between  the  Belgians  and  Dutch,  the 
former  being  more  closely  allied  with  the  French  and  the  latter 
with  the  Germans.  In  1830  a  revolt  broke  out  at  Brussels, 
as  a  result  of  which  there  was  a  conflict  between  Holland  and 
the  people  of  Belgium.  A  cessation  oif  hostilities  resulted 
from  the  mediation  of  the  great  powers,  and  a  convention  of 
delegates  chosen  from  the  different  provinces  of  Belgium  as- 
sembled at  Brussels,  which  declared  for  independence  and  a 
constitutional  hereditary  monarchy.  In  June,  1831,  Prince 
Leopold  of  Saxe-Coburg  was  chosen  king,  under  the  condi- 
tion that  he  would  accept  the  constitution  and  swear  to  main- 
tain the  national  in(le])endence  and  territorial  integrity,  which 
he  did.  Further  conflicts  took  place  between  the  two  coun- 
tries, and  in  1832  France  and  England  proceeded  to  enforce 
submission  by  Holland  to  the  determination  of  the  powers  by 


528  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

force  of  arms.  In  May,  1833,  after  much  negotiation,  a 
treaty  was  concluded  providing  for  the  settlement  oil  bounda- 
ries and  the  separation  of  the  two  countries. 

The  present  constitution  of  Holland  is  that  established  in 
1814  as  revised  in  1848.  The  crown  is  hereditary  by  primo- 
geniture in  both  male  and  female  lines.  The  king  is  the 
executive  head  with  i>ower  to  declare  war  and  make  peace. 
He  appoints  the  ministers,  of  whom  there  are  eight :  namely,  of 
the  interior,  the  zvatersaat  (including  trade  and  industry,  rail- 
ways, post  ofBces,  etc.)  of  justice,  war,  finance,  marine,  the 
colonies  and  foreign  affairs.  Though  appointed  by  the  king 
the  ministers  are  accountable  to  the  country  for  the  conduct 
of  affairs.  The  law-making  power  is  vested  in  the  king  and 
States  General,  composed  of  two  houses.  The  members  of  the 
upper  house  are  chosen  by  the  several  provinces  from  those 
paying  the  largest  direct  taxes  and  contains  thirty-nine  mem- 
bers holding  for  terms  oif  nine  years,  one-third  of  the  members 
being  chosen  every  three  years.  The  members  of  the  lower 
house  are  chosen  by  electoral  districts  by  all  citizens  paying 
the  requisite  tax,  varying  from  twenty  to  one  hundred  and 
sixty  guilders.  One  member  is  chosen  for  every  forty-five 
thousand  people.  There  is  also  a  council  of  state,  appointed 
by  the  king,  to  which  all  legislation  is  submitted  by  the  king 
before  being  presented  to  the  states,  and  all  enactments  by 
the  States  General  are  submitted  to  the  council  before  approval 
by  the  king.  In  each  province  there  are  similar  assemblies 
having  charge  of  local  matters,  made  up  of  two  houses  chosen 
by  the  same  electors.  The  presidents  of  these  assemblies  are 
appointed  by  the  king.  At  the  head  of  every  commune  is  a 
communal  council  chosen  by  the  people.  The  president  of 
the  council,  the  burgomaster,  is  appointed  by  the  king  for  six 
years.  There  are  eleven  provinces  and  about  1130  communes. 
The  administration  of  justice  is  l)y  a  system  of  courts,  at  the 
head  of  which  is  the  Supreme  Court  sitting  at  The  Hague, 
with  inferior  local  courts  in  each  province  and  commune. 

The  people  of  Holland  enjoy  complete  religious  liberty, 
freedom  of  speech,  of  association,  and  the  right  of  trial  by  jury. 
No  countrv  furnishes  a  better  illustration  of  the  possibilities 


HOLLAND  AND  BELGIUM  529 

of  overcoming  natural  difficulties  by  combined  effort  and  of 
turning  adverse  natural  conditions  to  advantage  than  Holland. 
As  formed  by  nature  the  district  now  included  in  the  kingdom 
was  exposed  to  inundation  from  the  sea;  much  of  it  so  low 
and  marshy  as  to  be  unlit  ifor  cultivation  and  much  actually 
below  sea  level.  The  soil  was  not  of  exceptional  fertility  in 
general,  and  much  of  it  was  sandy  and  poor.  By  a  system  of 
dykes  more  than  1550  miles  in  length,  some  of  which  are  now 
utilized  as  beds  for  railways,  not  only  have  the  low  marsh 
lands  been  protected  and  reclaimed,  but  large  districts  have 
been  gained  from  the  sea  and  converted  into  fruitful  fields. 
Though  well  supplied  with  rivers,  the  interior  communication 
was  early  supplemented  by  an  extensive  system  of  canals. 
These  and  the  flooding  of  lowlands  by  cutting  the  dykes  have 
in  times  past  materially  affected  military  operations  and  'been 
utilized  in  the  defense  of  the  country.  From  the  earliest  times 
the  people  have  found  it  necessary  to  unite  their  efforts  in 
overcoming  natural  iforces  as  well  as  in  fighting  other  people. 
This  induced  a  spirit  of  association  and  also  led  to  a  perception 
of  the  essential  principles  to  be  observed  in  combining  for 
common  enterprises  and  sharing  the  benefits.  The  people  of 
Holland  were  among  the  leaders  in  modern  times  in  the  study 
and  elaboration  of  legal  principles.  Grotius,  1583  to  1645,  is 
still  regarded  as  a  leading  authority  on  international  law.  In 
the  controversies  with  Charles  and  Philip  of  Spain  the  Hol- 
landers argued  most  tenaciously  for  the  observance  of  their 
charters  and  the  protection  of  the  laws,  as  well  as  for  religious 
liberty,  though  in  the  condemnation  of  Barneveldt  and  Gro- 
tius and  the  execution  of  the  former,  as  well  as  in  many  other 
judicial  outrages,  they  showed  that  the  spirit  of  cruelty  and 
intolerance  was  not  confined  to  one  creed  or  sect.  Still 
throughout  all  the  bloody  persecutions  there  was  a  marked 
disposition  to  proceed  by  established  forms  and  to  execute 
only  after  the  forms  of  law  had  been  complied  with. 

Combined  effort  was  also  necessary  in  carrying  forward 
commercial  enterprises,  and  the  Dutch  were  among  the  earliest 
to  take  full  advantage  of  the  opening  of  trade  with  distant 
lands.     By  negotiations  and  a  generally   pacific   {)olicy   they 


530  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

established  trading  posts  in  the  East  and  West  Indies,  Asia 
and  America,  which  afforded  their  merchants  advantages, 
from  which  they  made  great  gains  and  took  leading  rank  in 
the  commercial  world.  The  wars  of  Holland  have  with  but 
rare  exceptions  been  purely  defensive.  In  these  the  people 
have  exhibited  a  degree  of  stubborn  bravery  and  of  brilliant 
daring  never  surpassed  by  any  people.  It  has  been  in  all  its 
history  mainly  a  collection  of  towns,  and  the  democratic  spirit, 
engendered  by  close  contact  of  many  people  engaged  in  indus- 
trial pursuits,  has  never  been  successifully  crushed  by  any 
ruling  power.  On  the  other  hand  the  aristocratic  spirit  has 
grown  from  generation  to  generation  among  the  families  pos- 
sessed of  great  wealth,  and  the  present  constitution  with  its 
property  qualification  for  voters  shows  the  effects  of  this 
tendency.  Commercial  and  industrial  pursuits  necessitate  a 
degree  of  education  not  found  among  the  peasant  communi- 
ties of  Europe  prior  to  the  eighteenth  century,  and  the  people 
of  Holland  of  the  fifteenth,  sixteenth  and  seventeenth  cen- 
turies enjoyed  as  large  a  measure  of  education  as  any  in 
Europe.  The  extent  of  the  domination  of  the  Dutch  is  not 
fully  measured  by  their  territorial  possessions.  They  early 
learned  the  mastery  gained  by  the  investment  of  money  and 
the  acquisition  of  legal  titles  to  property,  and  Dutch  capital 
has  been  placed  in  America  and  elsewhere  in  such  manner  as 
to  still  further  extend  the  power  and  influence  of  her  capital- 
ists and  financiers.  In  perception  and  utilization  of  the  advan- 
tages of  combination  and  mutual  help  in  peaceful  enterprises 
no  modern  people  and  perhaps  none  of  any  age  have  excelled 
them.  The  educational  system  provides  for  general  primary 
instruction  but  is  not  so  thorough  as  that  of  Prussia.  It  is 
being  improved.  There  are  four  universities  of  high  rank,  at 
Utrecht,  Leyden,  Groningen,  and  Amsterdam. 

The  constitution  of  Belgium  adopted  in  1S31  exhibits  more 
marks  of  modern  influences  than  that  of  Holland.  The  latter 
has  its  traditions  and  survivals  of  ancient  organizations,  while 
the  former  is  thoroughlv  modern. 

The  first  title  relates  to  the  boundaries  and  division  into 
provinces.     The  second  is  much  like  the  bills  of  rights  in  the 


HOLLAND  AND  BELGIUM  53i 

constitutions  of  the  American  states,  and  contains  among 
others  the  following  important  provisions : 

Art.  6.  "In  the  State  there  shall  be  no  distinction  of  order. 
All  Belgians  are  equal  before  the  law ;  they  alone  are  admitted 
to  civil  and  military  employments,  with  such  exceptions  as 
may  be  established  by  law  for  particular  cases." 

Art.  7.  "Individual  liberty  is  guaranteed.  No  one  can  be 
prosecuted,  except  in  the  cases  specified  by  law  and  in  the 
form  w^hich  it  prescribes.  Save  when  taken  in  the  act,  no  one 
shall  be  arrested  except  by  virtue  of  an  order  issued  by  a 
judge.  It  shall  be  shown  at  the  time  of  the  arrest  or  not  later 
than  twenty-four  hours  thereafter." 

Art.  8.  "No  one  shall  be  deprived  against  his  will  of  the 
judge  whom  the  law  assigns  him." 

Art.  9.  "No  penalty  shall  be  established  or  enforced  except 
by  law." 

Art.  10.  "The  home  is  inviolable.  No  search  shall  be  made 
except  in  cases  provided  for  by  law  and  in  the  form  Avhich  it 
prescribes." 

Art.  II.  "No  one  shall  be  deprived  of  his  property  except 
for  public  use  and  then  only  in  the  cases  and  in  the  manner 
provided  for  by  law;  and  a  just  indemnity,  to  be  ascertained 
beforehand,  shall  be  paid." 

Art.  14.  "The  freedom  of  religions,  their  public  exercise,  as 
well  as  the  libertv  of  expressing  their  opinions  on  every  mat- 
ter, are  guaranteed ;  reserving  the  right  of  repressing  crimes 
committed  in  the  exercise  of  these  liberties." 

Art.  15.  "No  one  shall  be  compelled  to  observe,  in  any  man- 
ner whatsoever,  the  rites  and  ceremonies  of  any  form  of  re- 
ligion, nor  be  required  to  observe  days  of  rest." 

Art.  17.  "Public  education  shall  be  free,  every  preventive 
measure  is  prohibited.  The  repression  of  crime  shall  be  regu- 
lated by  law.  Public  instruction  given  at  the  expense  of  the 
state  shall  also  be  regulated  by  law." 

Art.  t8.  "The  press  is  free,  no  censorship  shall  ever  be  es- 
tablished, nor  can  writers,  editors  or  printers  be  required  to 
give  bonds.  When  the  author  is  known  and  resides  in  Bel- 
gium, the  editor,  printer  or  news  agent  cannot  Ix?  prosecuted." 


532  EVOLUTION  OF  GOVERiNMENTS  AND  LAWS 

Art.  19.  "All  Belgians  have  the  right  to  assemble  peaceably 
and  withont  arms,  conforming  themselves  to  the  laws  which 
may  regulate  the  exercise  of  this  right,  but  without  being 
obliged  to  obtain  permission  beforehand.  This  regulation 
does  not  apply  to  open  air  meetings,  which  are  entirely  under 
police  regulation." 

Art.  20.  "Belgians  shall  have  the  right  to  form  associa- 
tions; this  right  cannot  be  suppressed  by  any  preventive 
measure." 

Art.  22.  "The  secrecy  of  the  mails  shall  be  inviolable.  The 
law  shall  determine  who  arc  the  responsible  agents  in  the  vio- 
lation of  the  secrecy  of  the  mails." 

Art.  24.  "No  previous  authorization  is  necessary  to  begin 
suits  against  public  officials  for  the  acts  of  their  administra- 
tion, with  such  exceptions  as  may  be  made  regarding  the 
Ministers." 

Title  three  distributes  the  governmental  powers. 

Art.  25.  "All  powers  emanate  from  the  nation.  They  shall 
be  exercised  in  the  manner  established  by  the  constitution." 

Art.  26.  "The  legislative  power  shall  be  exercised  collect- 
ively by  the  king,  the  House  of  Representatives  and  the 
Senate." 

Art.  2y.  "The  initiative  shall  belong  to  each  one  of  the 
three  branches  of  the  legislative  power.  But  all  laws  relative 
to  the  receipts  or  expenses  of  the  state,  or  the  contingent  of 
the  army  must  be  first  voted  by  the  House  of  Representatives." 

Art.  28.  "The  interpretation  of  the  laws  in  an  authorita- 
tive manner  shall  belong  only  to  the  legislative  power." 

Art.  29.  "To  the  king  belong  executive  powers  within  the 
limits  prescribed  by  the  constitution." 

Art.  30.  "The  judicial  power  shall  be  exercised  by  the 
courts  and  tribunals." 

Sessions  of  the  Houses  are  required  to  be  public,  subject  to 
a  right  to  resolve  themselves  into  secret  committees.  Each 
house  judges  of  the  returns  and  qualifications  of  its  members. 
Appointment  by  the  government  to  a  salaried  position  vacates 
the  member's  seat.  A  majority  constitutes  a  quorum.  An 
absolute  majority  is  required  to  pass  a  law,  and  the  vote  must 
be  taken  by  roll  call.     Members  are  privileged  from  arrest. 


HOLLAND  AND  BELGIUM  533 

Art.  47.  "The  House  off  Representatives  shall  be  composed 
of  Deputies  elected  directly  by  those  citizens  paying  the  census 
prescribed  by  the  electoral  law,  which  shall  not  exceed  one 
hundred  florins  of  direct  tax  nor  be  below  twenty  florins." 

The  number  of  deputies  shall  not  exceed  one  for  40,000 
inhabitants  and  to  be  eligible  one  must  be  a  Belgian  twenty- 
five  years  old.  The  term  of  ofifice  is  four  years  and  one-half 
are  elected  every  two  years.  Members  have  a  monthly  salary 
of  two  hundred  florins,  except  that  those  who  reside  in  the 
city  where  the  session  is  held  get  no  salary.  The  senate  is 
composed  of  half  the  number  of  the  House,  elected  for  eight 
years,  one-half  every  four  years,  but  entirely  renewed  in  case 
oif  dissolution.  Senators  must  be  Belgians  forty  years  old  and 
pay  at  least  1000  florins  direct  taxes,  including  licenses  in 
Belgium.     They  receive  no  salary. 

The  constitutional  powers  of  the  king  are  conferred  on 
Leopold  of  Saxe-Coburg  and  made  hereditary  in  the  male  line 
by  primogeniture.  In  case  of  failure  of  such  heirs  the  king 
may  name  his  successor,  with  the  consent  of  the  two  houses. 
The  king  cannot  be  chief  of  another  state  without  the  assent 
of  the  two  houses. 

Art.  63.  "The  person  of  the  king  shall  be  inviolable,  his 
ministers  shall  be  responsible." 

Art.  64.  "No  act  of  the  king  shall  have  any  effect,  if  it  be 
not  countersigned  by  a  Minister  who,  by  this  act  alone,  makes 
himself  responsible."  "The  king  appoints  ministers,  confers 
grades  in  the  army,  and  appoints  officers  of  the  general  ad- 
ministration and  foreign  afTairs,  and  such  others  as  are  au- 
thorized by  law.  He  has  no  power  to  suspend  the  laws.  The 
king  commands  the  army  and  navy,  declares  war,  and  makes 
treaties.  Treaties  of  commerce  or  imposing-  obligations  on 
the  Belgians  must  be  ratified  by  both  houses."  "No  cession, 
no  exchange,  no  addition  of  territory  can  take  place  except  by 
law."  "The  houses  shall  be  in  session  each  year,  for  at  least 
forty  days,"  and  the  king  may  convoke  them  on  extraordinary 
occasions  and  may  dissolve  them  simultaneously  or  separately. 
He  mav  remit  or  reduce  sentences,  except  those  against  the 
ministers.     He  may  confer  titles  of  nobility. 


534  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Art.  68.  "No  one  shall  be  a  Minister  who  is  not  a  Belgian 
by  birth  or  who  has  not  received  supreme  naturalization." 

Art.  jj.  '"The  law  shall  fix  the  civil  list  for  the  duration  of 
each  reign." 

Art.  y'li.  "The  king  shall  have  nu  other  powers  than  those 
which  the  constitution  formally  confers  upon  him  and  the  par- 
ticular laws  passed  in  pursuance  of  the  same  constitution." 

In  case  of  vacancy  of  the  throne  the  ministers  exercise  the 
kings'  powers,  and  the  two  houses  provitle  a  regency  during 
the  minority  or  disability  of  the  king. 

Art.  '^'j.  "No  member  of  the  Royal  Family  shall  be  a 
minister." 

Art.  88.  "The  Alinisters  shall  have  a  deliberative  voice  in 
one  or  the  other  house  only  when  they  are  members  thereof. 
They  shall  have  free  access  to  each  of  the  houses  and  must  be 
heard  when  they  demand  it.  The  houses  may  require  the 
presence  of  the  ^Ministers.'' 

Art.  89.  'Tn  no  case  shall  the  verbal  order  or  writ  of  the 
king  relieve  a  minister  from  his  responsibility." 

Impeachments  of  ministers  are  tried  before  both  houses  in 
joint  session.  Articles  92  to  107  inclusive  relate  to  Judicial 
Power. 

Art.  94.  "No  tribunal  nor  civil  court  shall  be  established 
except  by  law.  No  extraordinary  commissions  or  tribunals 
shall  be  established  under  any  name  whatsoever." 

One  Court  of  Appeals  for  all  Belgium  is  established  with 
no  original  jurisdiction  except  in  the  trial  of  ministers.  Court 
proceedings  must  be  public,  except  when  dangerous  to  public 
order  or  morals  and  formally  decided  so  to  be.  Jury  trials 
are  required  in  all  criminal  matters.  All  judicial  officers  are 
named  directly  by  the  king.  Judges  are  appointed  ifor  life 
with  salaries  fixed  by  law,  and  prohibited  from  accepting  any 
other  salaried  appointment.  The  powers  and  procedure  of 
all  courts  civil  and  military  are  subject  to  regulation  by  law. 
Provincial  and  local  institutions  are  regulated  by  law  on  the 
principles  of  direct  election,  local  self-government  in  local 
affairs,  publicity  of  council  meetings,  budgets  and  accounts. 

Art.  no.  "No  tax  for  the  benefit  of  the  state  shall  be 
established  except  by  law." 


HOLLAND  AND  BELGIUM  535 

Art.  III.    "All  state  taxes  shall  be  voted  annually." 

A  court  of  accounts,  charged  with  the  examination  of  the 
accounts  of  the  general  administration,  with  members  named 
by  the  House  of  Representatives  is  established.  Title  V  relates 
to  the  army  and  requires  all  matters  relating  to  its  numbers, 
method  of  recruiting  and  organization  to  be  regulated  by  law. 

Art.  128.  "Every  foreigner  on  Belgian  territory  shall  enjoy 
the  protection  accorded  to  persons  and  property,  with  such 
exceptions  as  may  be  established  by  the  law." 

Art.  130.  "The  constitution  can  neither  be  suspended  in 
whole  or  in  part."  The  constitution  may  be  revised  after  a 
declaration  that  there  is  need  df  revision  and  dissolution  of 
the  houses  by  a  two-thirds  vote  of  newly  elected  houses.  This 
constitution  is  clearly  the  most  advanced  of  all  those  retaining 
a  king  as  head  of  the  state.  In  practice  time  has  demonstrated 
the  wisdom  of  its  provisions,  and  Belgium  with  the  most  dense 
population  of  any  European  country  enjoyed  a  high  degree  of 
prosperity  and  had  kept  clear  of  destructive  wars  until  invaded 
by  the  Germans  in  August,  191 4. 

In  its  provision  requiring  authoritative  interpretations  of 
the  law  to  be  made  only  by  the  law-making  power,  it  is  in  ad- 
vance of  the  American  constitutions. 

In  each  province  there  is  a  governor  named  by  the  king  and 
a  provincial  council  elected  by  the  people.  The  affairs  of  the 
communes  are  also  conducted  by  councils  chosen  by  the  people 
for  terms  of  six  years  and  a  burgomaster  appointed  by  the 
king  from  among  the  members  of  the  council.  There  is  a 
general  primary  school  system,  carried  on  at  the  expense  df 
the  communes,  and  secondary  schools,  part  supported  by  the 
communes  and  others  by  the  government.  There  are  four 
universities,  at  Ghent,  Liege,  Brussels  and  Louvain.  Besides 
these  there  are  technical  schools  of  high  rank.  In  its  benevo- 
lent and  charitable  institutions  Belgium  takes  high  rank  and 
maintains  many  of  various  classes. 

Much  attention  is  j)aid  to  the  needs  of  the  working  classes 
and  to  organizations  designed  to  assist  them.  There  are  not 
only  savings  banks  and  mutual  assistance  societies,  but  charity 
workshops  are   provided  at  Ghent,   Liege  and   other   towns. 


5.36  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

where  indigent  laboring  men  out  of  employment  are  relieved. 
These  are  not  only  means  of  temporary  relief  to  the  necessi- 
tous, but  are  designed  as  schools  of  instruction  and  to  encour- 
age industry  among  those  who  otherwise  might  become 
criminals  or  beggars.  There  are  also  manufacturing  schools 
for  girls,  where  they  are  taught  to  make  fabrics,  etc.  Liberal 
j)rovisions  are  made  for  the  care  of  the  insane,  diseased  and 
infirm  and  for  temporary  relief  to  the  indigent. 

The  judicial  system  consists  of  a  court  of  cassation  at  Brus- 
sels, composed  of  a  president  general,  a  president  of  the 
chamber  and  fifteen  councillors.  It  has  power  to  revise  the 
action  of  inferior  courts  and  reverse  their  decisions  for  errors 
of  law.  It  is  divided  into  two  chambers,  one  for  civil  and  the 
other  for  criminal  causes.  There  are  three  courts  of  appeal, 
one  each  at  Brussels,  Ghent  and  Liege.  In  the  capital  of  each 
province  is  a  court  of  assize,  composed  of  a  councillor  deputed 
from  one  of  the  courts  of  appeals  and  two  judges  chosen  from 
among  the  presidents  and  judges  of  the  primary  tribunal 
where  the  court  is  held.  This  court  has  jurisdiction  of  crimes 
and  the  trial  is  by  a  jury  of  twelve,  chosen  from  a  panel  of 
thirty  by  lot.  In  each  arrondissement  is  a  court  of  primary 
jurisdiction  of  civil  causes  and  misdemeanors.  The  number 
of  judges  in  these  varies  from  three  to  ten.  There  are  also 
tribunals  of  commerce  in  the  principal  towns.  Appeals  are 
allowed  in  causes  involving-  2000  /francs  or  more.  In  the 
manufacturing  towns  there  are  councils  of  prud-hommes, 
composed  of  master  tradesmen  and  workmen,  who  decide  dis- 
jHites  between  masters  and  workmen.  All  judges  are  appoint- 
ed by  the  king  for  life  and  are  incapable  of  holding  any  other 
office.  The  interests  of  the  state  are  represented  by  advocates 
and  procurators  ap])ointed  'by  the  crown.  After  the  settlement 
of  its  disputes  with  Holland  Belgium  entered  on  a  prosperous 
and  peaceful  career.  It  passed  through  the  period  of  1848, 
which  shook  so  many  European  states,  with  but  slight  dis- 
turbance, and  as  a  mining  and  manufacturing  state  has  en- 
joyed a  good  degree  of  prosperity. 

Great  dissatisfaction  has  been  manifested  recently  over  the 
provisions  of  the  electoral  law  which  gives  to  Belgians  over 


HOLLAND  AND  BELGIUM  537 

thirty-five  years  of  age  if  married  or  widowers  paying  five 
francs  direct  tax  two  votes  each  and  to  those  having  certain 
other  property  qualifications,  official  status  or  university  diplo- 
mas three  votes  each.  By  this  increased  voting  pow^er  a  min- 
ority of  the  voters  is  given  a  majority  of  the  votes. 


CHAPTER  XXII 


Switzerland 


The  territory  included  in  modern  Switzerland  passed  suc- 
cessively under  the  rule  of  Romans,  Franks  and  Burgundians, 
without  the  development  of  any  local  national  life.  About 
A.D.  406  or  407  the  Alemanni  took  possession  of  northern 
Helvetia,  which  their  descendants  still  occupy.  A  little  later 
the  Burgundians  settled  about  Lake  Geneva  and  soon  acquired 
mastery  o\er  southern  Helvetia.  The  ancient  Celts  and  Ro- 
mans were  not  exterminated,  but  remained  subject  to  the  in- 
\ading  tribes.  The  Alemanni  carried  with  them  the  Germanic 
customs  of  land  tenure,  using  pasture  and  waste  lands  in  com- 
mon, and  of  determining  all  public  matters  in  an  assembly  of 
the  freemen.  The  rule  of  Charlemagne  was  extended  over  all 
Helvetia,  and  feudalism  developed  there  substantially  as  else- 
where throughout  western  Europe. 

The  history  of  Switzerland,  as  well  as  the  romantic  legends 
connected  with  its  political  birth,  are  closely  connected  with 
the  rise  of  the  House  of  Hapsburg,  whose  early  seat  was  in 
the  modern  canton  of  Aargau,  with  estates  in  the  cantons  oif 
Luzern,  Schwyz  and  Unterwalden.  From  ancient  times  the 
Germanic  tribes  were  accustomed  to  act  in  concert  in  the  asser- 
tion of  their  rights,  and  the  feudal  system  did  not  have  the 
effect  of  obliterating  all  such  organizations  in  the  mountain 
districts  of  Switzerland.  Prior  to  the  controversy  with  the 
Hapsburgs  we  find  the  people  of  Schwyz  and  of  separate  parts 
of  Unterwalden  organized  into  Markgcnosscnschaftcn  and 
accustomed  to  meet  and  confer  with  reference  to  their  common 
interests.  In  1231  Henry  VII  issued  a  charter  to  the  men  of 
Uri,  making  them  immediate  vassals  of  the  empire,  promising 
them  his  protection,  and  setting  them  ifree  from  Count  Rudolf 
of  Hapsburg.  In  1240  a  similar  charter  was  granted  by 
Frederick  II  to  the  men  of  Schwyz  the  original  of  which  is 
still  preserved  and  reads : 

538 


SWITZERLAND  539 

"Having  received  letters  and  messengers  from  you,  to  prove 
and  make  known  your  conversion  and  submission  to  us,  we 
accede  to  your  express  desire  with  gracious  and  affectionate 
good  will;  we  praise  your  submission  and  loyalty  not  a  little 
in  that  you  have  shown  the  zeal  which  you  have  always  had 
for  us  and  the  empire,  by  taking  protection  under  our  wings 
and  those  of  the  empire,  as  you  are  bound  to  do,  being  freemen 
who  must  turn  to  us  and  the  empire  alone.  Since. therefore 
you  have  chosen  our  rule  and  that  of  the  empire  of  your  own 
free  will,  we  receive  you  loyally  with  open  arms  and  respond 
to  your  sincere  affection  with  our  single  minded  favor  and 
good  will,  by  taking  you  under  our  special  protection  and  that 
of  the  empire,  so  that  we  will  never  allow  you  to  be  alienated 
or  withdrawal  .from  our  sovereign  rule  and  that  of  the  empire." 

This  charter  was  not  recognized  by  the  Hapsburgs  as  taking 
away  their  rights,  and  it  it  difficult  to  see  how  the  Emperor 
could  rightfully  cut  the  feudal  bond,  which  already  existed 
between  Rudolph  and  his  vassals.  In  the  controversy  between 
the  Emperor  Frederick  and  the  Pope  the  people  of  Schwyz 
and  Uri  supported  the  Emperor,  while  Rudolph  supported  the 
Pope.  Frederick  II  was  excommunicated  and  deposed. 
Count  Rudolph,  during  the  conflict,  called  in  the  aid  of  the 
Pope  to  restore  his  vassals  to  their  allegiance,  and  built  the 
fortress  of  New  Hapsburg  near  Lake  Luzern,  from  which 
his  rights  were  enforced. 

In  1273  the  fief  of  Schwyz  passed  from  the  Laufenburg 
line  of  the  house  of  Hapsburg  to  that  of  Austria,  and  in  the 
same  year  Rudolph  was  chosen  emperor.  By  this  chance  the 
imperial  sovereignty,  assumed  by  the  charter  of  Frederick, 
became  united  in  the  person  of  Rudolph  with  that  of  the  house 
of  Hapsburg.  Rudolph  governed  it  as  an  immediate  posses- 
sion, and  it  therefore  ranked  as  "unmittclbar."  During  his 
reign  an  edict  was  issued,  exempting  the  people  from  answer- 
ing a  summons  to  appear  before  any  tribunal  outside  the  val- 
ley, and  providing  that  they  should  be  answerable  only  to  the 
emperor,  his  sons  or  the  judge  of  the  valley.  Unterwalden 
was  divided  into  a  number  of  marks  and  contained  the  mon- 
astery of  Engelberg  and  many  free  peasants.     Rudolph  died 


540  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

July  15,  1291.  On  August  i  of  the  same  year  the  three  forest 
stajtes  conchided  a  league  and  executed  their  first  articles  of 
confederation,  which,  written  in  Latin  on  parchment,  are 
still  preserved.  This  document  is  of  interest,  not  only  as  the 
work  of  the  founders  of  the  Swiss  confederacy,  but  in  the 
light  it  throws  on  the  state  of  society  and  the  conceptions  of 
law  and  social  order  then  entertained  by  the  people.  The  fol- 
lowing is  a  translation : 

"In  the  name  of  God,  Amen — 
Honor  and  the  public  weal  are  promoted  when  leagues  are 
concluded   for  the  proper  establishment  of  quiet  and  peace. 

I.  Therefore  know  all  men,  that  the  people  of  the  valley  of 
Uri,  the  democracy  of  the  valley  of  Schwyz  and  the  community 
of  the  mountaineers  of  the  Lower  Valley,  seeing  the  malice  of 
the  age,  in  order  that  they  may  better  rlefend  themselves  and 
their  own  and  better  preserve  them  in  proper  condition,  have 
promised  in  good  /faith  to  assist  each  other  with  aid,  with 
every  counsel  and  every  favor,  with  person  and  goods,  within 
the  valleys  and  without,  with  might  and  main,  against  one  and 
all  who  may  inflict  on  any  of  them  any  violence,  molestation 
or  injury  or  may  plot  any  evil  against  their  persons  or  goods. 
2.  And  in  every  case  each  community  has  promised  to  succor 
the  other  when  necessary,  at  its  own  expense,  as  far  as  needed 
in  order  to  withstand  the  attacks  of  evil-doers  and  to  avenge 
injuries,  to  this  end  they  have  sworn  a  bodily  oath  to  keep  this 
without  guile  and  to  renew  by  these  presents  the  ancient 
form  of  the  league,  also  confirmed  by  an  oath.  3.  Yet  in 
such  a  manner  that  every  man,  according  to  his  rank,  shall 
obey  and  serve  his  overlord  as  it  behooves  him.  4.  We  have 
also  promised,  decreed  and  ordained  in  common  council  and 
by  unanimous  consent,  that  we  will  accept  or  receive  no  judge 
in  the  aforesaid  valleys  who  shall  have  obtained  his  office  for 
any  price  or  for  money  in  any  way  whatever,  or  who  shall  not 
be  a  native  or  a  resident  with  us.  5.  But  if  dissension  shall 
arise  between  any  of  the  confederates,  the  most  prudent 
among  the  confederates  shall  come  forth  to  settle  the  difficulty 
between  the  parties  as  shall  seem  right  to  them ;  and  whichever 
party  rejects  their  verdict  shall  be  an  adversary  to  the  other 


SWITZERLAND  541 

confederates.  6.  Furthermore,  as  has  been  estabHshed  be- 
tween them  that  he  who  deliberately  kills  another  without 
provocation,  shall  iif  caught,  lose  his  life,  as  his  wicked  guilt 
requires,  unless  he  be  able  to  prove  his  innocence  of  said 
crime;  and  if  perchance  he  escape,  let  him  never  return. 
Counsellors  and  defenders  of  said  criminal  shall  be  banished 
from  the  valleys,  until  they  be  expressly  recalled  by  the  con- 
federates. 7.  But  if  any  one  of  the  confederates  by  day  or  in 
the  silence  of  the  night,  shall  maliciously  injure  another  by 
fire,  he  shall  never  be  considered  a  compatriot.  8.  If  any  man 
protect  and  defend  the  said  criminal  he  shall  render  satisfac- 
tion to  the  injured  person.  9.  Furthermore  if  any  one  of  the 
confederates  shall  spoil  another  of  his  goods  or  injure  him 
in  any  way,  the  goods  of  the  guilty  one,  if  recovered  within 
the  valley,  shall  be  seized  in  order  to  pay  damages  to  the  in- 
jured person  according  to  justice.  10.  Furthermore,  no  man 
shall  seize  anothers  goods  for  debt  unless  he  be  evidently  his 
debtor  or  surety,  and  this  shall  only  'be  done  with  the  special 
permission  of  his  judge.  Moreover  every  man  shall  obey  his 
judge  and  if  necessary,  must  himself  indicate  the  judge  in  the 
valley,  before  whom  he  ought  properly  to  appear.  11.  And  if 
anyone  rebels  against  a  verdict  and  in  consequence  of  his  ob- 
stinacy, any  one  of  the  confederates  is  injured,  all  the  con- 
federates are  bound  to  compel  the  contumacious  person  to 
give  satisfaction.  12.  But  if  war  or  discord  arise  amongst 
any  of  the  conifederates,  and  one  party  of  the  disputants  refuse 
to  accept  justice  or  satisfaction,  the  confederates  are  bound 
to  defend  the  other  party.  13.  The  above  written  statutes, 
decreed  for  the  common  weal  and  health,  shall  endure  for- 
ever, God  willing.  In  testimony  of  which  at  the  request  of 
the  aforesaid  parties,  the  present  instrument  has  been  drawn 
up  and  confirmed  with  the  seal  of  the  aforesaid  three  com- 
munities and  valleys. 

Done  Anno  Domini  M  C  C.  L  XXXX  Prima,  in  the  begin- 
ning of  the  mnnth  of  August." 

A  little  more  than  two  months  later  Uri  and  Schwvz  en- 
tered into  a  separate  alliance  with  Zurich  for  three  years.  Iti 
1294  an  assembly  of  the  men  of  Schwyz  was  held,  at  which  it 


542  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

was  resolved  that  no  one  should  be  permitted  to  sell  or  give 
land  to  monasteries  in  the  valley  or  to  strangers  outside,  under 
heavy  penalty,  and  requiring  the  monasteries  and  foreign 
owners  to  pay  taxes  on  their  holdings  the  same  as  residents, 
and  not  impose  them  on  their  tenants.  During  the  reign  of 
Albrecht  I  the  cantons  were  governed  by  native  Landaman- 
ncn.  The  critical  investigations  of  historians  have  cruelly 
swept  away  the  basis  for  the  poetic  tales  of  Tell  and  his  com- 
patriots and  the  period  when  Swiss  liberty  is  pictured  as  taking 
birth.  In  place  of  these  thrilling  tales  it  is  said  that  the  period 
of  the  reign  of  Albrecht  I  was  uneventful,  as  far  as  the  Swiss 
cantons  are  concerned.  Albrecht  refused  to  confirm  the 
charters,  but  those  of  Uri  and  Schwyz  were  confirmed  by 
Henry  VII,  and  a  charter  was  also  granted  to  Unterwalden. 
These  charters  were  an  assertion  by  Henry  of  Luxemburg, 
as  emperor,  of  sovereignty  in  opposition  to  the  claims  oif  the 
Hapsburgs.  The  question  at  issue  was  not  whether  the  forest 
states  were  free  or  subject  to  the  Hapsburgs,  but  whether 
they  were  "mittelhar"  i.e.  subject  to  the  Hapsburgs  as  Haps- 
burgs or  "unmittclbar"  and  subject  only  to  the  emperor 
whether  he  were  a  Hapsburg  or  other  prince. 

In  January,  13 14,  a  band  of  Schwyzers  attacked  the  Abbey 
of  Einsiedeln,  which  was  under  the  protection  of  the  Haps- 
burgs, and  after  damaging  much  property  took  away  the 
monks  as  prisoners  and  drove  off  the  cattle.  This  raid  re- 
sulted from  a  controversy  over  the  use  of  lands  claimed  by 
both  parties.  On  Nov.  15,  131 5,  a  conflict  occurred  at  Mor- 
garten  between  the  confederates  and  a  force  under  Duke 
Leopold,  in  which  the  latter  sustained  a  crushing  defeat.  The 
battle  was  remarkable  in  the  fact  that  a  body  of  mounted  and 
armored  knights  was  defeated  by  peasants  on  foot.  On  Dec. 
9,  1 31 5.  a  meeting  was  held  and  the  league  of  the  cantons 
renewed  on  the  same  lines,  with  the  additional  provisions  that : 
"those  lords  or  that  lord  who  shall  attack  one  of  the  Lands 
with  violence,  or  force  unjust  exactions:  such  a  one  or  such 
men  shall  not  be  served  as  long  as  they  have  not  given  satis- 
faction to  the  Lands,"  and  also  "We  have  also  agreed  that 
none  of  the  Lands  nor  any  among  the  confederates  (Eidgcnos- 


SWITZERLAND  543 

sen),  shall  give  an  oath  or  pledge  to  a  foreigner  without  the 
advice  of  the  other  Lands  or  Confederates."  Three  years 
later  the  Duke  of  Austria  renounced  all  sovereign  rights  over 
the  states,  but  retained  jurisdiction  over  his  estates,  and  peace 
was  concluded.  On  Nov.  7,  1332,  a  perpetual  league  was  con- 
cluded between  the  three  forest  cantons  and  Lucern.  This 
compact  recognized  the  rights  of  Austria  in  Lucern,  and  of 
the  Emperor  over  Uri,  Schwyz  and  Unterwalden,  but  pro- 
vided for  mutual  assistance  in  case  off  aggression  from  any 
quarter  and  for  arbitration  of  controversies  among  the  con- 
federates. Lucern  had  been  under  ecclesiastical  rule  and  had 
also  obtained  a  charter.  In  1291  Rudolph  of  Hapsburg 
bought  for  his  sons  all  the  possessions  of  the  Abbey  of  Mor- 
bach.  Through  this  purchase  Lucern  passed  to  the  Hapsburgs, 
and  in  13 15  the  citizens  were  compelled  to  take  part  in  the 
battle  of  Morgarten  against  the  Forest  Cantons. 

At  this  time  Zurich  was  a  city  of  considerable  importance 
and  classed  as  a  free  city.  The  form  of  the  city  government 
was,  however,  oligarchical.  The  people  were  divided  into 
classes  as  nobles,  free  burghers  and  working  men.  The  gov- 
erning body  was  a  council  composed  of  thirty-six  burghers, 
divided  into  three  groups  off  twelve  each,  a  group  governing 
one  third  of  a  year.  The  working  class  had  no  vote  nor  share 
in  the  city  government.  In  1336  there  was  an  uprising  against 
the  abuses  of  the  council,  led  by  Rudolph  Brun,  who,  though 
of  a  leading  family  and  a  member  of  the  council,  became  the 
champion  of  the  common  people.  A  new  charter  was  formed 
called  the  "First  Sworn  Brief,"  which  provided  that  the  whole 
population  should  swear  to  serve  and  obey  the  Bi'irgcrtncistcr 
in  all  things,  without  however,  disparagement  of  the  rights 
of  the  Emperor  and  the  two  church  establishments  of  the 
city.  The  Bi'irgcruicistcr  must  swear  to  protect  all  citizens  to 
the  best  of  his  ability  without  distinction  of  rich  or  poor.  A 
new  council  was  to  be  elected  by  two  classes,  the  first  included 
the  nobles  and  burghers  who  lived  on  their  incomes,  or  were 
in  business  as  merchants,  woolen-dra|)ers,  money  changers, 
goldsmiths  and  salt  dealers.  These  together  formed  an  as- 
sociation, called  the  Konstaffcl.     The  workingmcn  made  up 


544  EVOLUTION  OF  GOVERXMEXTS  AXD  LAWS 

the  second  class  and  were  grouped  into  thirteen  guilds  ac- 
cording to  occupation.  They  were  organized  into  companies 
and  drilled  for  the  deifense  of  the  city.  Over  each  was  a 
guildmaster,  elected  semiannually  by  the  guild,  who  became 
ex-ofticio  a  member  of  the  council.  The  Kunstaffcl  chose  an 
equal  number,  making  the  full  council  twenty-six  in  number. 
On  important  occasions  all  the  citizens  were  assembled  for 
consultation.  The  Burgcrmcistcr  was  chosen  for  life.  Fol- 
lowing this  change  of  organization  there  was  trouble  with 
the  Count  of  Rappersw^il  and  his  followers,  and  on  Feb.  23, 
1350,  an  attack  was  made  on  Zurich  under  the  lead  of  the  son 
of  a  Count  of  Rappersweil  who  had  been  slain  in  a  fight  at 
Grinau.  The  attempted  surprise  resulted  in  the  capture  of 
the  young  count  and  his  principal  followers,  thirty-five  of 
whom  were  barbarously  executed.  Brun,  who  had  been  chosen 
Burgcrmcistcr,  took  Rappersweil,  destroyed  the  castle  and 
devastated  the  possessions  oif  the  Hapsburgs  about  the  head 
of  the  lake.  As  a  result  Zurich  was  confronted  with  the 
forces  of  Austria  and  needed  help.  On  May  i,  T351,  a  per- 
I)etual  league  was  concluded  between  Zurich,  Lucern,  Uri, 
Schw'yz  and  Unterwalden,  each  promising  mutual  assistance, 
but  allowing  the  members  to  form  separate  alliances,  and 
pledging  the  forest  states  to  help  maintain  the  existing  form 
of  government  in  Zurich,  if  requested.  War  follow-ed  be- 
tween the  Austrian  duke  and  the  confederates.  In  June 
1352  Glarus  joined  the  confederacy.  Lucern  not  becoming  a 
party  to  the  compact.  On  June  27  Zug.  wdiich  had  been 
taken  possession  of  by  the  confederates,  also  joined  the  league. 
After  an  indecisive  campaign  peace  was  concluded  with  Aus- 
tria, by  which  the  Duke  retained  Glarus  and  Zug. 

The  city  of  Bern  was  also  an  itniiiittclbar,  free  city,  claim- 
ing charter  rights  under  what  is  called  the  Goldcnc  Handvcstc, 
claimed  to  have  been  granted  by  Frederick  TI  in  12 18,  allow- 
ing immunity  from  imperial  taxation,  except  an  annual  home- 
stead tax.  with  the  privilege  of  electing  all  its  municipal 
officers,  exemption  from  military  service  so  far  away  that 
thev  could  not  return  at  night,  and  containing  many  other 
regulations   of   municipal   affairs.      In    1295   certain   reforms 


SWITZERLAND  545 

were  made.  In  adilition  to  the  ScliultJiciss  and  council  of 
twelve,  a  board  of  sixteen  was  chosen  from  the  four  wards 
of  the  city,  which  was  empowered  to  elect  a  common  council 
of  200.  Artisans,  theretofore  unrepresented,  were  eligible  to 
the  board  and  council.  Guilds  were  forbidden.  Prior  to  this 
time  Bern  had  vacillated  in  its  allegiance  between  Savoy  and 
Hapsburg.  In  1323  Bern  sought  and  gained  the  alliance  of 
the  r^orest  States  and  in  the  following  years  waged  war  and 
took  a  number  of  places  in  the  neighboring  district.  In  June 
1339  the  battle  of  Laupen  was  fought  and  won  by  the  con- 
federates, and  in  1342  peace  was  concluded,  which  was  follow- 
ed in  1355  by  the  admission  of  Bern  into  the  Confederation. 
A  document  similar  to  the  former  ones  was  drawn  up, 
but  not  making  a  close  league  between  the  cities.  Charles  IV, 
having  quarreled  with  Rudolph  IV  of  Austria,  confirmed  the 
charters  and  leagues  of  the  States,  and  in  1364  the  latter  re- 
covered Zug  from  Austria.  In  1375  there  was  an  invasion  of 
a  large  army  of  mercenaries  under  Ingram  de  Courcy,  which 
entered  Argau  and  laid  waste  the  country.  The  attack  was 
directed  rather  against  Austria  than  the  Swiss  but,  as  usual, 
innocent  people  rather  than  the  hostile  ruler  suffered.  The 
people,  however,  rose,  surprised  and  de/feated  a  large  detach- 
ment and  soon  drove  the  remainder  from  the  country.  This 
was  called  the  Gugler  invasion.  After  a  brief  interval  of 
peace  quarrels  were  renewed  with  Austria.  All  the  members 
of  the  league  except  the  Forest  Cantons  and  Glarus  joined 
the  Swabian  Confederacy.  Lucern  refused  to  pay  customs 
to  the  Austrian  bailiff  and  received  and  protected  peasants 
from  the  ducal  estates.  The  bailiffs  seat  at  Rothenburg  was 
destroyed.  Zug  attacked  the  castle  of  St.  Andreas,  Zurich 
marched  against  Rappersweil  and  the  men  of  Schwyz  took 
Einsiedeln.  A  summons  was  sent  to  the  Swabian  cities,  to 
which  they  made  scanty  response. 

In  June  1386  Leopold  Til,  who  had  succeeded  to  the  western 
possessions  of  the  Hajjsburgs,  organized  an  expedition  to 
crush  the  confederacy.  Many  noblemen  of  the  neighboring 
country  came  to  his  aid.  and  he  also  hired  several  bands  of 
mercenaries.     With  a  force  oif  6,000,  including  many  armored 


546  EVOLUTION  OF  GOVERNMENTS  AND  UWNS 

knights,  he  made  a  feint  of  an  attack  on  Zurich,  but  it  was  his 
purpose  to  strike  Lucern  as  the  heart  of  the  Confederacy. 
With  overweening-  confidence  his  forces  moved  along,  un- 
prepared for  an  attack,  when  on  July  9,  1386,  they  were  met 
at  Senipach  by  about  i,0oo  men  of  i^ucern  and  the  f'orest 
States.  The  battle  which  ensued,  though  not  involving  great 
numbers,  is  one  of  the  most  notable  in  history  from  the  fact 
that  a  very  inferior  force  of  peasants  and  burghers,  lighting 
without  armor,  defeated  so  large  a  iforce  of  armored  knights 
and  professional  soldiers.  Leopold  was  killed  and  his  army 
comi)letely  routed.  Some  circumstances  favored  the  Confed- 
erates. Their  attack  was  a  surprise,  on  ground  unfavorable 
to  horses,  so  that  the  knights  were  forced  to  dismount,  and, 
the  heat  being  intense,  their  armor  was  such  a  serious  encum- 
brance as  to  outweigh  the  protection  it  afforded.  The  tale 
of  the  heroism  of  Winkelried  and  the  share  he  contributed 
to  the  victory  is  a  subject  of  controversy  among  historians, 
though  not  so  thoroughly  discredited  as  the  legends  of  Tell. 
The  results  flowing  from  this  remarkable  battle  were  mo- 
mentous, for  it  finally  Ijroke  the  power  of  Austria  in  the 
Confederation,  The  men  oif  Glarus  at  once  rose  against 
Austria  and  in  April  1388  defeated  at  Nafels  the  army  sent 
against  them,  though  the  Austrian  odds  were  much  greater 
than  at  Sembach.  In  1389  a  peace  for  seven  years  was  con- 
cluded, which  secured  the  confederates  in  all  their  possessions, 
and  on  July  16,  1394,  it  was  extended  for  twenty  years.  Only 
a  few  months  after  the  battle  of  Nafels  the  Swabian  cities 
met  a  crushing  defeat  at  the  battle  of  Doffingen,  and  their 
league  came  to  an  end. 

At  the  head  and  front  of  the  confederacy,  thus  /far,  had 
been  the  men  of  the  Forest  States.  Uri,  Schwyz,  Unterwalden 
and  Glarus  were  still  democracies  of  the  ancient  German  type. 
The  people  assembled  in  the  open  air  as  the  Landgemcindc. 
They  chose  a  council  to  transact  current  business,  but  the 
power  of  ultimate  decision,  the  sovereign  authority,  rested 
in  the  whole  body  of  citizens,  and  it  was  their  united  mental 
and  physical  energies  that  produced  such  surprising  results. 
The  rule  of  the  cities  was  more  oligarchical  in  character,  the 


SWITZERLAND  547 

chief  executive  officer  and  the  council  acting  for  the  whole. 
Bern,  the  most  important  of  the  cities,  was  also  the  most 
oligarchical  in  its  constitution.  The  chief  magistrate,  called 
the  Schultheiss,  and  council  of  twelve  from  the  aristocracy 
had  held  exclusive  authority  till  the  reform  beifore  mentioned. 
The  P  faff  en  brief,  subscribed  by  all  the  confederates  except 
Bern  and  Glarus,  contained  among  others  the  following  im- 
portant provisions,  i.  All  vassals  of  Austria,  whether  clergy, 
laity,  nobles  or  commoners,  taking  abode  in  the  confederation, 
must  swear  fealty  to  the  Confederates.  2.  No  foreign  ec- 
clesiastic, dwelling  in  the  Confederacy,  should  summon  others 
before  foreign  tribunals,  except  in  ecclesiastical  or  matri- 
monial cases.  3.  A  priest  violating  this  rule  should  be  out- 
lawed. 4.  The  Confederates  guaranteed  the  safety  of  all  roads 
from  the  Stubende  Briicke  on  the  St.  Gothard  route  as  far 
as  Zurich. 

The  covenant  of  Sempach  (Sempacher  brief),  was  executed 
in  1393  by  the  eight  confederates,  and  also  by  Solothurn,  and 
recited  that, 

"Whereas  they  had  fought  and  won  against  Austria  they 
now  desired  to  make  provision  for  future  attacks"  and  pro- 
vided, I.  That  no  confederate  should  break  into  the  house  of 
another  with  intent  to  plunder  either  in  war  or  peace.  2.  That 
the  safety  of  merchants  in  persons  and  goods  be  guaranteed. 
3.  Those  taking  part  in  future  military  expeditions  were  to 
stand  by  one  another,  whatever  might  happen,  like  true  men. 
as  also  their  'forefathers  did.  4.  Should  anyone  desert  in  war 
or  break  any  of  the  rules  of  this  covenant  and  his  guilt  be  at- 
tested by  at  least  two  honorable  men,  he  should  be  promptly 
punished  in  his  person  and  goods,  according  to  the  law  of  the 
state  to  which  he  belonged.  5.  The  wounded  were  to  stay  by 
their  comrades  until  all  danger  was  past  nor  be  considered 
deserters  if  unable  to  help.  6.  Thereafter  no  man  should  be 
allowed  to  take  plunder  until  the  fight  was  at  an  end  and  the 
captains  gave  permission,  and  all  spoils  should  be  equally  dis- 
tributed to  every  man  a  share.  7.  All  monasteries  and  churches 
should  remain  inviolate,  unless  the  enemy  took  shelter  in 
them.     8.  Women  should  not  be  attacked  unless  thev  warned 


54«     EVOLUTIOX  OF  GOVERXMEXTS  AXD  LAWS 

the  enemy  by  an  outcry  or  themselves  fought,  in  which  case 
they  should  be  punished  as  they  deserved,  9.  None  of  the 
ctjntracting-  parties  should  provoke  war  wantonly  without  due 
cause  or  warning  as  provided  in  the  various  leagues. 

This  compact  provided  no  governmental  machinery  for 
common  ends,  but  nevertheless  was  a  substantial  bond.  It 
advanced  principles  of  humanity,  for  the  violation  of  which 
war  should  afford  no  excuse.  Though  by  no  means  free  from 
the  savagery  of  the  times,  in  their  provisions  for  arbitrating 
disputes  among  themselves  and  mitigating  the  horrors  oif  war 
the  confederates  exhibited  a  morality  far  in  advance  of  the 
general  spirit  of  the  time. 

The  monastery  of  St.  Gallen,  founded  during  the  seventh 
century,  had  grown  into  a  powerful  ecclesiastical  establish- 
ment with  large  estates.  The  abbots  exercised  authority 
over  the  estates  of  the  monastery,  while  the  supreme  authority 
over  the  district  was  in  the  hands  of  an  imperial  bailiff.  In 
1345  the  Abbott  was  appointed  balift'  over  the  city  of  St. 
Gallen  and  the  villages  of  the  province.  In  1377  five  villages, 
united  under  the  name  of  Appenzell,  joined  the  Swabian  league 
and  created  a  council  of  thirteen,  elected  by  the  people.  In 
1 40 1  an  alliance  between  these  villages,  St.  Gallen  and  other 
communities  suffering  from  the  rule  of  a  tyrannical  abbot, 
tformed  a  league  and  attacked  the  possessions  of  the  Abbot. 
In  1403  Appenzell  was  taken  under  the  protection  of  Schwyz 
and  received  an  Amman  from  it  as  chief  magistrate,  and  pro- 
ceeded to  commit  further  depredations  on  the  abbot's  estate. 
He  gathered  a  considerable  force,  which  met  a  crushing  de- 
feat at  Vogelinsegg.  Again,  on  June  17,  1405,  having  called 
in  the  aid  of  Austria,  an  effort  was  made  to  compel  submis- 
sion to  the  Abbot's  rule,  but  the  mountaineers  were  again  vic- 
torious and  assuming  the  offensive  overran  the  whole  coun- 
try southeast  of  the  Boden  See.  This  country  they  were 
unable  to  hold,  and  in  1407  they  sustained  a  defeat. 

In  141 1  a  new  alliance  was  formed  between  Appenzell  and 
Schwvz,  with  all  the  other  members  of  the  confederacy  ex- 
cept Bern,  by  which,  however,  Appenzell  occupied  a  subordi- 
nate position  under  protection  of  the  other  states.     In   141 2 


SWITZERLAND  549 

St.  Gallen  was  also  added  to  the  league.  In  1388  the  people 
of  some  of  the  communes  of  upper  Valais,  exasperated  by  the 
murder  of  the  Bishop,  had  inflicted  a  crushing  defeat  on 
Count  Amadeus  VII  of  Savoy  and  the  nobility  allied  with 
him,  and  in  1403  the  Bishop  of  Sion  and  the  people  of  the 
Valais  entered  into  "Burg  mid  Landrccht"  with  Uri,  Unter- 
walden  and  Lucern.  Here  it  will  be  observed  that  the  Bishop 
and  the  people  were  opposed  to  the  nobles.  In  1403  Uri  and 
Obwalden  invaded  and  established  their  authority  in  Ticino 
as  a  subject  province.  In  141 2  the  peace  with  Austria  was 
renewed  for  a  further  period  of  fifty  years.  In  141 5  under 
instigation  of  the  emperor  Sigismund,  who  was  at  war  with 
Frederick  of  Austria,  the  members  of  the  league  attacked  the 
Aargau  and  besieged  the  stronghold  called  the  Stein.  While 
the  siege  was  being  pressed,  peace  was  concluded  between  the 
emperor  and  the  duke,  and  the  confederates  were  ordered  to 
withdraw,  but  they  refused,  took  the  Stein  and  divided  the 
territory  among  the  members  of  the  confederacy.  Uri  how- 
ever took  no  share.  Disputes  having  arisen  between  Schwyz 
and  Zurich  over  the  estate  of  the  Count  of  Taggenburg, 
Zurich  formed  an  alliance  with  the  ancient  enemy,  Austria, 
and  the  confederates  declared  war.  In  a  battle  before  Zurich 
the  confederates  were  successful.  After  a  brief  time  an 
overwhelming  force  of  mercenaries,  called  the  Armagnacs, 
came  into  the  country  and  attacked  about  i,3C)0  of  the  con- 
federates near  Basel  on  Aug.  21,  1444.  A  most  desperate 
fight  ensued,  in  which  the  latter  were  nearly  exterminated. 
The  effect  oif  the  battle,  however,  was  to  check  the  advance 
of  the  victors.  In  1450  the  principle  of  arbitration  was  in- 
voked, and  the  Schultheiss  of  Bern  chosen  final  arbiter  be- 
tween the  contending  parties.  He  declared  the  allegiance 
between  Austria  and  Zurich  null  and  that  by  the  perpetual 
league  Zurich  was  still  bound  to  the  confederation.  On  the 
other  hand  Zurich  was  given  back  her  territory,  except  a 
small  portion  of  the  Taggenburg  estate. 

In  1474  the  confederation  was  drawn  into  a  war  with  the 
Duke  of  Burgundy,  in  which  it  defeated  him  in  two  great 
battles  and  took  a  great  quantity  of  spoils.     Differences  hav- 


550  EVOLUTION   OF  GO\  HKXMKXTS  AND  LAWS 

ing  occurred  between  the  Forest  States  and  the  cities,  a  diet 
was  called  to  meet  at  Stans  in  Unterwalden  to  settle  matters. 
It  met  in  1481  and  after  stormy  scenes  finally  reaffirmed  the 
Covenant   of   Sempach  and  Pfaffcnbrief  with  an  additional 
covenant  against  dangerous  assemblies  in  the  towns  leading 
to  tumults.    It  was  further  provided  that  the  covenants  should 
be  sworn  to  every  five  years.     In  1499  the  confederates  be- 
came involved  in  a  war  with  the  Emperor.     Mter  a  brief 
struggle  the  matters  in  dispute  were  referred  to  arbitration, 
and  from  that  time  the  confederation  became  practically  in- 
dependent, though  not  formally  recognized  as  being  so.     In 
1500  Basel  and  Schaf¥hausen  were  received  into  the  confeder- 
ation as  the  eleventh  and  twelfth  members.     The  Swiss  had 
reached  the  stage  of  a  recognized  military  power,  and  Swiss 
mercenaries   were   eagerly   sought   by   European   ix)tentates. 
The   confederation   also   entered    upon    a    struggle   with    the 
French  King  for  Italian  possessions,  which  resulted  in  their 
defeat  at  Morignano  in   151 5.     Following  this  war  Appen- 
zell   was   admitted   into   the  confederation   as   the   thirteenth 
state.     Though  the  confederation  had  waged  such  successful 
wars,  it  was  still  without  any  central  government.     All  con- 
cert of  action  was  attained  by  conferences  of  representatives 
of  the  different  states.     The  diets,  which  were  held  by  dele- 
gates, were  not  strictly  legislative  or  sovereign  bodies,  but 
rather  assemblies  of  ambassadors,  who  could  only  act  in  ac- 
cordance \vith   instructions.      Nevertheless  the   country   does 
not  seem  to  have  suffered  greatly  from  the  want  of  a  stronger 
government.     Common  needs  and  purposes  formed  a  stronger 
bond  of  union  than  any  accepted  system  would  under  other 
circumstances.     No  error  is  more  common  or  more  harmful 
than  that  the  acceptance  of  an  official  system  necessarily  adds 
greatly  to  the  welfare  of  the  people.     A  government  is  not 
firmly  established  until  the  people  generally  are  educated  to 
regard  it  as  having  rightful  authority  and  to  yield  obedience 
to  the  rules  and  principles  on  which  it  is  founded.     When  this 
condition  is  attained,  the  great  majority  of  the  people  observe 
and  obey  these  rules  and  principles  without  the  direct  appli- 
cation   of    the    power   di    governing   agencies.      Compulsory 


SWITZERLAND  S5i 

measures  are  only  required  for  the  minority  who  refuse  com- 
pHance.  The  bond  of  the  feudal  system  was  the  oath  of  th» 
vassal  to  serve  his  lord  and  the  promise  of  the  lord  to  protect 
the  vassal.  When  the  relation  was  entered  into,  its  obligations 
were  distinctly  taught  and  assumed  as  a  personal  duty,  de- 
liberately accepted,  and  to  the  performance  of  which  the  vas- 
sal was  bound  by  his  oath.  In  the  absence  of  the  compact  or 
of  any  accepted  relation,  the  vassal  would  have  had  the  same 
natural  right  to  lead  and  command  as  the  lord,  and  in  a  com- 
pany of  freemen  would  as  often  be  chosen  by  his  fellows  to 
do  so. 

The  peculiarity  olf  the  Swiss  confederation,  distinguishing 
it  from  most  if  not  all  other  confederations,  was  that  it  was 
an  Eid gcnosscnschaft ,  an  oath  bound  association,  in  which 
the  individuals  composing  the  democratic  states  entered  into 
a  written  compact,  agreeing  to  do  certain  things  for  mutual 
protection,  and  to  be  bound  by  certain  rules  which  were 
deemed  conducive  to  the  general  welfare,  and  took  an  oath 
that  they  would  perform  the  compact.  This  was  in  effect  an 
oath  of  mutual  support  in  defense  of  their  rights,  instead  of 
an  oath  of  fealty  to  an  overlord.  The  bond  which  thus  tied 
equals  to  each  other  proved  in  the  early  struggles  even  stronger 
than  the  feudal  bond.  It  was  superior  in  its  moral  principles. 
It  appealed  both  to  the  conscience  and  to  the  intelligence  of 
all  the  freemen,  and  the  voluntary  compliance  yielded  to  the 
compact  was  such  as  to  make  a  few  peasants  and  burghers  the 
superiors  in  war  of  the  feudal  lords  of  Austria,  and  even  of 
Burgundy,  France  and  the  empire.  It  is  also  worthy  of  notice 
that  the  leading  necessity  for  arbitrary  central  authority, 
vested  in  one  ruler,  is  to  raise,  equip  and  command  armies  in 
war.  The  need  of  a  single  head,  vested  with  power  to  decide 
and  act  promptly,  has  been  almost  universally  recognized,  yet 
the  superiority  of  the  free  confederates  over  the  feudal  lords 
and  their  retainers  was  demonstrated  over  and  over  on  many 
hard  fought  battle  fields.  There  is  much  similarity  between 
these  early  contests  and  those  of  the  Greeks  against  the 
Persians.  Perhaps  the  most  significant  fact  connected  with 
this  matter  is,  that  a  force  of  men  fighting  a  defensive  war, 


552  EVOLUTION  OF  GOVERNMliXTS  AND  LAWS 

which  each  man  regards  as  his  war,  and  when  he  has  been  ■ 
educated  to  regard  it  as  his  rehgious  duty  to  do  his  utmost  for 
himself  and  his  sworn  comrades,  is  superior  to  another  force 
of  equal  numbers  which  merely  obeys  a  constituted  leader, 
and  that  education  in  and  voluntary  assumption  of  social 
duties  are  of  the  highest  value  in  the  organization  of  states. 

Among   the   most   noted   leaders   of   the   reformation   was 
Ulrich  Zwingii.     He  was  quite  as  much  a  political  as  a  reli- 
gious reformer,  and  he  preached  vigorously  against  the  sin  of 
fighting  the  battles  of  despots  for  pay.     Zurich  accepted  his 
doctrines,  and  the  other  Swiss  cities  inclined  toward  the  re- 
formation.    The   Forest   Cantons   remained   Catholic.      War 
between  the  opposing  factions  threatened  in  1529,  but  a  [)eace 
was  concluded  which  allowed  religious  (freedom  to  each  state, 
not  to  each  person.    In  1531  Zurich  having  cut  ofif  supplies  of 
food  from  the  Poorest  States  and  suppressed  the  monastery  of 
St.  Gallen  and  appropriated  its  lands,  civil  war  broke  out  and 
Zurich  was  defeated.     A  second  peace  followed,  which  rec- 
ognized the  right,  not  only  of  states,  but  of  each  parish  or 
commune,  to  determine  its   form  of  worship.     The  League 
split  into  two  camps.     The  Catholics  held  Uri,  Schwyz,  Un- 
terwalden,  Lucern  and  Zug,  which  in  1529  as  the  "Christliche 
Vcrcinigung"   had   entered   into  an   offensive   and   defensive 
alliance  with  the  King  of  Hungary,  and  Freiburg,  Solothurn, 
Inner  Rhoden,  Appenzell  and  St.  Gall,  which  gave  them  seven- 
teen out  of  a  total  of  twenty-nine  members  of  the  diet  as  then 
constituted.     The  reformers  held  Zurich,  Bern,  Basel  Schaff- 
hausen,     Ausser     Rhoden     (Appenzell)     with     Graubunden. 
Thurgau  and  Glarus  were  divided.     Prior  to  the  reformation 
Geneva  was  a  republican  city,  over  which  the  count  of  Savoy 
and  the  Bishop  claimed  seigniority.     In  15 19,  at  the  instiga- 
tion of  the  republican  elements  in  the  city,  a  temporary  al- 
liance was   formed  with   Freiburg  and  Bern  and  another   in 
1526  for  twenty-five  years.     In  1536  by  the  aid  of  an  army 
from  Bern.  Geneva  was  liberated  from  the  rule  of  the  Bishop 
and  Count  of  Savoy.     The  people  had  been  converted  to  the 
principles  of  the  reformation,  and  a  new  alliance  was  con- 
cluded.    Geneva  became  the   field  of  the  labors  of  William 


SWITZERLAND  553 

Farel  and  John  Calvin,  and  under  their  leadership  adopted  a 
rigid  and  intolerant  system,  which  was  enforced  with  the 
burning  of  Michael  Servetus  at  the  stake  for  heresy  and  other 
cruelties.  Secret  spies  and  torture  were  called  to  the  aid  of 
those  who  professed  a  reformation  of  the  Church  of  Rome. 

In  October  1586  the  Golden  League  was  formed  by  the 
Catholic  states  of  Uri,  Schwyz,  Unterwalden,  Lucerne,  Zug, 
Freiburg  and  Solothurn  for  the  maintenance  of  the  true  faith 
in  their  territories  and  engaging  to  help  each  other,  if  at- 
tacked by  external  enemies,  notwithstanding  any  other  league 
new  or  old.  In  161 2  Zurich  and  Bern  entered  into  an  al- 
liance with  the  Margrave  of  Baden.  Though  religious  dis- 
sensions had  disrupted  the  Confederation,  unlike  their 
co-religionists  throughout  Germany,  the  opposing  factions 
did  not  join  in  the  Thirty  Years'  war,  but  maintained  an  atti- 
tude of  neutrality.  They  were  unable  to  escape  some  compli- 
cations with  Austria,  which  conquered  the  Prattigan,  and  the 
Spanish  and  French  in  the  Valtellaine. 

The  treaty  of  Westphalia,  concluded  in  1648,  terminated 
the  Thirty  Years'  war  and  recognized  the  independence  of  the 
Confederation  in  the  following  language,  "Aforesaid  city  of 
Basel  and  the  remaining  Cantons  of  the  Helvetians  are  in 
possession  of  as  good  as  full  freedom  and  exemption  from 
the  empire  and  are  in  no  way  subject  to  the  Dikastericn  and 
courts  of  the  empire." 

The  hiring  of  mercenary  troops  to  foreign  princes,  the 
payment  of  pensions  to  the  states  for  the  privilege  o/f  hiring 
mercenaries,  the  rulership  of  the  Aargau,  Thurgau  and  other 
lands  taken  by  force  of  arms  and  ruled  as  dependencies  by  the 
cantons,  the  exercise  of  authority  by  representatives  of  the 
states,  by  bailiffs  and  captains,  tended  to  develop  the  aristo- 
cratic spirit,  not  only  in  the  cities,  but  in  the  Forest  Cantons 
as  well.  With  more  intercourse  and  closer  relations  with 
neighboring  states  and  with  the  growth  of  individual  for- 
tunes social  distinctions  and  oligarchical  tendencies  develojjed. 
The  democratic  cantons  exercised  over  their  dependencies  the 
rights  of  the  feudal  lords  whom  they  had  displaced,  and  with 
no  less  rigor.      Tn    \C)Z^t^  the  peasant's  war  broke  out   in   the 


554  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Entlebuch,  a  valley  subject  to  Lucern,  and  spread  over  the 
whole  Confederacy.  Popular  assemblies  were  held  and  pro- 
tests made  against  the  tyrannies  of  the  local  governments. 
Armed  encounters  followed  between  the  peasants  and  the 
authorities,  resulting  in  the  defeat  olf  the  former  and  the 
barbarous  execution  of  Leuenberger  and  Schibi  their  prin- 
cipal leaders. 

In  1663  Louis  XIV  of  France  renewed  a  treaty,  first  made 
with  the  Confederation  in  1602,  and  thereby  obtained  their 
pledge  to  supply  him  at  least  6,000  and  not  more  than  16,000 
men  annually  in  return  for  3,000  francs  to  each  canton  an- 
nually, regular  pay  for  the  mercenaries  and  certain  commercial 
privileges.  The  aristocratic  tendencies  were  most  marked  in 
the  cities  of  Bern,  Lucern,  Freiburg  and  Solothurn,  where 
there  were  no  guilds  sharing  in  the  government  as  at  Zurich. 
Basel  and  Schaffhausen.  They  were  promoted  there  as  every- 
where by  the  principle  of  the  inheritance  of  wealth  and  power. 
The  burghers,  who  administered  the  municipal  government, 
refused  to  admit  new  members  to  burgher  rights,  and  a  small 
class  secured  possession  of  all  the  offices  and  adopted  the 
principle  of  cooptation,  by  which  they  supplied  all  vacancies  by 
appointment  and  without  any  consultation  with  the  hotly  of 
the  citizens.  In  Bern  olf  360  burgher  families  eighty  held  all 
the  offices. 

It  is  most  remarkable  that  Swiss  territory  should  have  be- 
come the  fhvelling-  place  of  so  many  of  the  great  men  of  the 
eighteenth  century,  Voltaire,  Rousseau,  Gibbon,  Madame  de 
Stael,  Lavater  and  Pestalozzi.  On  Swiss  soil  there  was  an 
awakening  to  the  falsity  of  the  claim  of  the  descendants  of 
robber  barons  to  rule  by  right  divine,  and  to  the  manifest 
right  of  all  men  to  liberty,  not  only  of  conscience,  but  of  con- 
duct. Switzerland,  though  not  the  field  of  the  great  struggle 
for  liberty  which  took  form  in  the  last  part  of  the  eighteenth 
century,  was  a  school  in  which  the  principles  governing  social 
relations  were  studied  with  great  profit  and  prcvfound  in- 
fluence on  all  western  Europe.  In  1759  there  was  formed  the 
Oekononmche  Gesellschaft  at  Bern,  said  to  have  been  the 
first  agricultural  society  in  Europe.     It  promoted  improved 


SWITZERLAND  555 

systems  of  agriculture.  In  1762  the  Helvetian  society,  with 
the  Baths  of  Schinznach  as  the  place  of  its  meetings,  was 
formed  for  the  study  and  discussion  of  social  problems  and 
to  promote  reforms  in  public  affairs. 

There  were  various  attempts  to  gain  relief  from  the  tyranny 
of  the  oligarchies,  which  had  developed  not  only  in  the  cities 
but  in  the  Forest  Cantons,  in  Appenzell  against  Landammann 
Zvvellweger,  in  Zug  against  Zur  Lauben,  in  Schwyz  against 
the  family  of  Reding,  whose  wealth,  acquired  in  foreign 
service,  was  made  the  basis  df  claims  of  right  to  rule  at  home. 
In  Geneva  there  were  many  revolts  and  efforts  to  throw  off 
the  rule  of  the  oligarchy. 

In  Bern  the  democratic  leader  Henzi  and  two  companions 
were  executed,  as  was  Waser  in  Zurich.  The  lands,  wrested 
from  feudal  lords  by  the  Confederates  and  held  as  subject 
distri^cts,  revolted  against  the  oppression  of  their  rulers : 
Wilchingen,  in  Schafhausen,  Entlebuch,  the  Vaud,  the  Tog- 
genburg  and  Val  Levantina,  all  strove  for  relief,  but  without 
success.  Those  claiming  an  hereditary  right  to  take  the  pro- 
ceeds of  the  labors  of  others  without  compensation  main- 
tained their  claims  by  force  and  visited  barbarous  punishment 
on  those  who  asserted  their  natural  rights. 

In  1790  the  Helvetian  Club  at  Paris  was  formed  by  exiles 
from  Swiss  districts  and  issued  pamphlets  teaching  the  rights 
of  man,  which  they  succeeded  in  circulating  in  spite  of  the 
efforts  of  the  Cantonal  authorities  to  suppress  them.  Dis- 
turbances soon  followed.  In  1790  Lower  Wallis  rose  against 
the  upper  district.  In  1792  the  "Raurician"  republic  opposed 
the  prince  bishop  of  Basel  and  became  the  French  department 
of  Mont  Terrible.  Napoleon  sought  an  occasion  for  the  oc- 
cupation of  Swiss  Cantons,  and  when  exiles  from  Vaud  and 
Freiburg  called  in  the  directory  to  protect  the  liberties  which 
had  been  guaranteed  by  France,  an  excuse  was  found  and 
troops  were  sent  into  Mulhausen,  Bienne  and  the  territory  of 
the  Bishop  of  Basel  and  into  Vaud  where  the  "Lemanic  Re- 
public" was  proclaimed.  In  1798  a  large  French  army  en- 
tered the  country  and  took  Bern,  which  alone  offered  serious 
resistance  and  vielded  onlv  after  a  decisive  battle.     After  this 


5.s6     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

all  the  other  states  yielded  to  French  dictation.  On  April  12, 
1798,  a  new  constitution,  called  the  Helvetic,  was  jiromulgated 
by  authority  of  the  L'rench  Directory,  which  declared  the 
body  of  all  the  citizens  sovereign,  established  a  representative 
government,  guaranteed  religious  liberty  and  ifreedom  of  the 
press,  abolished  all  hereditary  titles  and  powers  and  all  feudal 
tenures  of  land.  Two  legislative  bodies  were  created,  a  Sen- 
ate of  four  delegates  from  each  canton  and  a  Grand  Council 
of  representatives  elected  by  the  people.  The  executive  power 
was  conferred  on  a  Directory  of  five  members,  to  be  chosen 
by  the  Senate  and  Council  jointly.  Four  ministers  at  the  head 
of  administrative  departments  were  provided  for.  A  supreme 
court,  consisting  of  one  judge  from  each  canton,  was  created. 
Each  canton  was  given  a  prefect,  a  board  of  administration 
and  a  local  court.  All  distinctions  between  the  cantons  and 
their  subject  districts  were  abolished,  and  the  people  of  all 
Switzerland  were  placed  on  an  equal  ifooting.  This  constitu- 
tion was  accepted  by  all  but  the  three  forest  cantons,  which 
resisted,  but  a  strong  French  army  after  severe  fighting  en- 
forced submission  and  on  July  14,  1798,  deputies  from  the 
eighteen  cantons  met  in  Aargau  and  took  the  oath  of  allegiance 
to  the  constitution.  Nidwalden  alone  refused  to  allow  its 
citizens  to  take  the  oath  and  made  a  desperate  resistance,  ex- 
hibiting the  ancient  Swiss  spirit,  but  was  overcome  by  superior 
numbers.  Much  new  legislation  was  passed  by  the  Senate 
and  Council.  There  was  an  abolition  of  all  the  vexatious 
trade  restrictions  between  the  cantons  with  which  they  were 
burdened,  and  free  trade  was  established  throughout  the  re- 
public. In  August,  1799,  an  offensive  and  defensive  alliance 
was  formed  with  France.  During  that  year  Switzerland  be- 
came a  battleground  for  the  contending  armies  of  France, 
Austria  and  Russia,  and  suffered  much  from  their  presence. 
The  Helvetic  constitution  did  not  prove  acceptable  to  the  peo- 
ple, and  divers  new  drafts  were  proposed  in  1801  and  1802. 
In  1802.  following  the  withdrawal  df  French  troops,  there 
were  uprisings  against  the  authorities,  and  in  the  ensuing 
conflicts  the  insurgents  were  generally  successful.  Napoleon 
put  an  end  to  the  strife  by  issuing  a  proclamation  inviting  the 


SWITZERLAND  557 

Swiss  people  to  send  delegates  to  confer  with  him  concerning 
a  new  constitution.  On  this  call  about  sixty  delegates  went 
to  Paris,  and  on  Feb.  19,  1803,  a  new  constitution,  styled  the 
Act  of  Mediation,  was  signed  and  promulgated.  It  was  a 
compromise  between  the  old  confederation  and  the  Helvetic 
constitution.  It  reinstated  the  old  Diet  with  enlarged  powers, 
and  restored  the  sovereig'nty  of  the  cantons.  Six  cantons 
were  selected,  namely  Freiburg,  Bern,  Solothurn,  Basel,  Zu- 
rich and  Lucern  in  which  the  diet  was  to  be  held  in  annual 
rotation,  the  Schulthciss  or  Biir germeister  of  each  capital  be- 
coming in  turn  President  of  the  confederation  with  the  title 
of  Landamann  of  Switzerland.  Each  canton  sent  one  dele- 
gate to  the  Diet,  but  cantons  having  more  than  100,000  in- 
habitants had  two  votes.  The  cantons  separately  had  all 
powers  not  delegated  to  the  Federal  authorities.  The  Lands 
gcuieinde  in  the  democratic  cantons  were  restored,  and  in 
the  other  cantons  the  government  was  put  in  the  hands  of 
the  great  council  as  the  legislative  body  and  the  small  council 
as  the  executive,  and  a  property  qualification  required  for 
voters  and  officials.  No  canton  was  allowed  to  form  a  sepa- 
rate political  alliance.  Full  liberty  was  given  all  citizens  to 
settle  in  any  canton,  and  no  privileged  class,  except  as  stated, 
or  subject  lands  were  allowed.  With  the  downfall  of  Na- 
poleon Switzerland,  in  common  with  the  rest  of  Europe, 
exhibited  reactionary  tendencies.  On  Dec.  22,  181 3,  Bern 
declared  the  Act  of  Mediation  void  and  reinstated  the  sur- 
viving members  of  the  old  council,  who  had  served  before 
the  revolution.  A  week  later  the  Diet  also  denounced  the  Act. 
and  the  work  of  forming  a  new  constitution  was  undertaken, 
but  was  not  completed  till  181 5,  under  the  supervision  of  the 
great  powers,  which,  at  the  Congress  of  Vienna  on  Nov. 
20,  181 5,  guaranteed  Switzerland  independence  and  the  in- 
violability of  her  territory.  On  Aug.  7.  181 5.  the  twenty-two 
states  comprising  the  confederation  signed  the  new  Btindes- 
vertrag.  Valais,  Geneva  and  Neuchatel  were  now  admitted 
as  states  on  an  equal  footing.  The  new  pact  regulated  the 
contributions  of  men  and  money  to  the  Confederation,  and 
pro\ided  a  Federal  Board  of  Arbitration  to  settle  internal  dis- 


558  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

putes.  The  Diet  was  made  of  delegates  limited  to  one  vote 
for  each  canton.  Bern,  Zurich  and  Lucern  were  made  capital 
cities  in  rotation.  The  ofilice  of  Lamiamann  was  abolished 
and  no  central  authority  was  created  to  enforce  the  decrees  of 
the  Diet.  Church  and  monastic  establishments  were  guar- 
anteed protection.  Following  the  adoption  of  this  scheme  of 
loose  confederation  the  cantons  returned  to  much  of  their 
ancient  system.  Censorship  of  the  press  and  the  mercenary 
system  are  among  the  worst  of  the  results  of  the  reaction. 

The  spirit  which  brought  about  the  French  Revolution  of 
1830  was  also  at  work  in  Switzerland,  and  meetings  were  held 
in  many  of  the  cantons,  demanding  reforms  and  increased 
respect  for  popular  rights.  In  that  year  nine  of  the  cantons 
revised  their  constitutions  in  response  to  these  demands.  Dur- 
ing the  following  year  there  were  conflicts  in  Basel,  Schwyz 
and  Neuchatel,  resulting  in  the  first  named  in  a  division  into 
two  half  cantons.  Attempts  to  revise  the  federal  constitution 
failed.  On  March  17,  1832,  Luzern,  Zurich,  Solothurn,  St. 
Gallen,  Aargau  and  Thurgau  joined  in  what  was  styled  the 
Siebenerkonkordat ,  guaranteeing  the  maintenance  of  the  con- 
stitutions of  the  members.  On  November  14  the  following 
conservative  cantons  Uri,  Schwyz,  Unterwalden,  Baselstadt, 
Neuchatel  and  Valais,  withdrew  from  the  diet  and  united  in 
a  league;  thus  dividing  the  Confederation  into  hostile  sections. 
From  this  time  on  dissensions  between  the  reformers  and 
conservatives,  the  Catholics  and  the  Protestants,  continued, 
the  cantons  arranging  themselves  in  opposing  factions  ac- 
cording to  the  prevailing  sentiment  in  each.  In  1843  Luzern, 
Uri,  Schwyz,  Unterwalden,  Zug,  Freiburg  and  Valais,  Catho- 
lic states,  formed  the  Sonderhnnd  and  in  December  1845 
signed  an  Act  of  Secession,  appointed  a  council  of  war,  and 
pledged  each  other  mutual  support  in  case  of  attack.  War 
did  not  result  till  the  fall  off  1847  and  was  then  short  and 
conducted  with  a  most  commendable  effort  to  reduce  the 
brutalities  of  war  to  a  minimum.  Dufour,  the  commander  of 
the  federal  forces,  was  both  a  humane  man  and  an  able,  ener- 
getic general.  A  campaign  of  twenty  days  settled  the  issue  in 
favor  of  the  Federal  side.     On  November  30,  after  the  war 


SWITZERLAND  559 

was  over,  the  French  ambassador  presented  a  collective  note 
of  the  great  powers,  offering  mediation  between  the  contend- 
ing factions,  but  the  offer  was  rejected  on  the  ground  that  the 
issue  had  already  been  decided.  In  1848  a  constitution  was 
adopted.  Under  it  a  man  settling  in  a  canton  other  than 
that  of  his  birth  acquired  citizenship  after  two  years,  but  was 
excluded  from  communal  rights.  A  Federal  legislature  was 
established,  made  up  o)f  two  houses,  the  Stande  Rath,  com- 
posed of  two  deputies  from  each  canton,  and  the  national 
council,  elected  for  terms  of  three  years,  one  for  every  20,000 
population  or  major  fraction.  The  Biindesrath  of  seven  mem- 
bers elected  by  the  assembly,  was  the  executive  head,  and 
their  chairman  was  styled  President  of  the  confederation. 
The  Biindesgericht  of  eleven  members  was  the  supreme  court. 
All  enlistments  of  mercenaries  in  foreign  service  were  forbid- 
den by  vote  of  the  assembly. 

On  Jan.  31,  1874,  a  revised  constitution  was  adopted  by  the 
two  houses  and  on  May  29  was  ratified  by  vote  of  the  people. 
It  is  unique  in  so  many  of  its  provisions  that  it  is  well  worth 
careful  study.  The  first  seventy  articles  define  the  purposes 
of  the  Confederation,  the  relation  of  the  cantons  to  it  and 
to  each  other,  and  many  other  matters  difficult  to  summarize. 

"Article  i.  The  peoples  of  the  twenty  sovereign  cantons  of 
Switzerland  united  by  this  present  alliance  namely"  (names) 
form  in  their  entirety  the  Swiss  Confederation. 

"Art.  2.  The  purpose  of  the  Confederation  is  to  secure  the 
independence  of  the  country  against  foreign  nations,  to  main- 
tain peace  and  order  within,  to  protect  the  liberty  and  the 
rights  of  the  confederates  and  to  foster  their  common 
welfare." 

"Art.  3.  The  Cantons  are  sovereign,  so  far  as  their  sov- 
ereignty is  not  limited  by  the  Federal  Constitution,  and  as 
such  they  exercise  all  the  rights  which  are  not  delegated  to 
the  federal  government." 

"Art.  4.  All  Swiss  are  equal  before  the  law.  In  Switzer- 
land there  are  neither  political  dependencies  nor  privileges  of 
place,  birth,  persons  or  families." 

Art.    ;.     Ciuarantees    to    the    cantons    and    their    citizens 


56o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

their  territory,  liberty  and  constitutional  rights.  Article  6 
requires  the  cantons  to  ask  the  Confederation  to  guarantee 
their  constitutions,  to  be  accorded  on  condition  that  they  are 
not  repugnant  to  the  Federal  Constitution  and  have  been 
ratified  by  the  people.  Article  7  prohibits  the  cantons  from 
forming  separate  alliances,  though  conventions  with  regard 
to  legislative,  administrative  and  judicial  subjects  are  allowed 
subject  to  approval  of  the  Federal  authorities, 

"Art.  <S.  The  Confederation  has  the  sole  right  of  declar- 
ing war,  of  making  peace  and  of  concluding  alliances  and 
treaties  with  foreign  powers,  particularly  treaties  relating  to 
tariffs  and  commerce." 

Art.  9.  Preserves  the  rights  of  the  cantons  to  make 
treaties  respecting  public  property  and  border  police  inter- 
course, not  conflicting  with  the  rights  of  the  confederation  or 
other  cantons.  Article  10  relates  to  intercourse  with  foreign 
governments.  "Art.  11,  No  military  capitulations  shall  be 
made." 

Art  12.  Prohibits  officials  from  receiving  pay,  gifts  or 
titles  from  foreign  governments. 

"Art.  13.  The  Confederation  has  no  right  to  keep  up  a 
standing  army.  No  Canton  or  half  Canton  shall,  without  the 
permission  of  the  Federal  government,  keep  up  a  standing 
force  of  more  than  three  hundred  men ;  the  mounted  police 
not  included  in  this  number." 

"Art.  14.  In  case  of  differences  arising  between  Cantons 
the  States  shall  abstain  from  violence  and  from  arming  them- 
selves; they  shall  submit  to  the  decision  to  be  taken  uixjn 
such  differences  by  the  Confederation." 

Arts.  15,  16  and  17  provide  for  mutual  aid  in  case  of 
foreign  attack  or  internal  disturbance. 

Article  18  binds  every  Swiss  to  perform  military  service 
and  Arts.  19-20-21  and  22  provide  for  the  organization  of 
the  army  under  the  general  control  of  the  Confederation,  but 
entrusting  certain  duties  to  the  cantonal  officials. 

Art.  23  authorizes  the  Confederation  to  construct  public 
works  which  concern  Switzerland  or  a  considerable  part  of 
it.     Art.  24  gives  the  Confederation  superintendence  of  dikes 


SWITZERLAND  561 

and  forests  in  the  upper  mountain  region.  Art.  25  gives  like 
power  to  protect  game. 

"Art.  26.  Legislation  upon  the  construction  and  operation 
of  railroads  is  in  the  province  of  the  Confederation." 

"Art.  27.  The  confederation  has  the  right  to  establish 
besides  the  existing  Polytechnic  School  a  Federal  University 
and  other  institutions  of  higher  instruction,  or  to  subsidize 
institutions  of  such  nature.  The  Cantons  provide  for  primary 
instruction  v^^hich  shall  be  sufficient,  and  shall  be  placed  ex- 
clusively under  the  direction  of  the  secular  authority.  It  is 
compulsory  and  in  the  public  schools  free.  The  public  schools 
shall  be  such  that  they  may  be  frequented  by  the  adherents 
of  all  religious  sects  without  any  offense  to  their  conscience 
or  belief.  The  Confederation  shall  take  the  necessary  mea- 
sures against  such  Cantons  as  shall  not  fulfill  their  duties." 

"Art.  28.  The  customs  are  in  the  province  of  the  Con- 
federation. It  may  levy  export  and  import  duties."  Article 
29  requires  import  duties  to  be  low  as  possible.  Art.  30  gives 
the  proceeds  of  customs  to  the  Confederation,  out  of  which 
certain  cantons  are  given  allowances  for  Alpine  roads. 

Art.  31  guarantees  free  trade  throughout  the  Confedera- 
tion, except  as  to  articles  subjected  to  state  police  sui>ervision 
and  the  salt  and  gunpowder  monopoly.  Art.  32  gives  the 
cantons  power  to  collect  duties  on  wine  and  spirits  under 
certain  restrictions.  Art.  32,  amended  in  1885,  authorizes 
the  Confederation  to  regulate  the  manufacture  and  sale  of 
alcohol.  Art.  ^;^  permits  the  cantons  to  regulate  the  granting 
of  certificates  to  practice  a  liberal  profession. 

"Art.  34.  The  Confederation  has  power  to  enact  uniform 
provisions  as  to  the  labor  of  children  in  factories,  and  as  to 
the  duration  of  labor  fixed  for  adults  therein,  and  as  to  the 
protection  of  workingmen  against  the  operation  of  unhealthy 
and  dangerous  manufactures.  The  transactions  of  emigra- 
tion and  guarantees  invio1al)le  secrecy  of  letters  and  telegrams, 
by  the  State,  are  subject  to  Federal  sui>ervision  and 
legislation." 

"Art.  34  his.  ( Amcuihiicnl  of  Oct  26,  iSqo).  The  Con- 
federation will  bv  law  establish  invalid  and  accident  insurance. 


56j  HVOLUTION   UF  GOVERNMENTS  AND  LAWS 

having'  regard  for  existing  invalid  funds.  It  may  declare 
participation  obligatory  for  all  or  for  special  classes  of  the 
population."   Art  35  Forbids  gaming  houses. 

Art.  36  places  posts  and  telegraphs  under  the  Confedera- 
tion and  guarantees  inviolable  secrecy  of  letters  and  telegrams. 
Art.  yj  gives  the  Confederation  general  supervision  over 
roads  and  bridges  and  Art.  38  gives  it  exclusive  control  of 
coinage. 

"Art.  39.  The  Confederation  has  the  power  to  make  by 
law  general  provisions  for  the  issue  and  redemption  of  bank 
notes,  but  it  shall  not  create  any  monopoly  for  the  issue  of 
banknotes,  nor  make  such  notes  a  legal  tender." 

Art.  40.  The  Confederation  fixes  and  the  cantons  enforce 
the  standard  of  weights  and  measures.  Art.  41  makes  manu- 
facture and  sale  of  gunpowder  a  state  monopoly.  Art.  42 
states  the  sources  of  revenue  of  the  Confederation. 

"Art.  43.  Every  citizen  of  a  canton  is  a  Swiss  citizen." 
A  Swiss  settled  in  a  canton  other  than  that  of  his  birth  enjoys 
full  political  rights,  hut  does  not  share  in  the  municipal  and 
corporate  property,  unless  by  act  of  the  canton. 

"Art.  44.  No  Canton  shall  expel  from  its  territory  one 
of  its  own  citizens,  nor  deprive  him  of  rights,  whether  ac- 
quired by  birth  or  settlement."  Naturalization  is  regulated 
by  federal  legislation.  Art.  45  gives  every  Swiss  citizen, 
except  criminals  and  paupers,  right  to  settle  anywhere  in 
Swiss  territory  on  a  certificate  of  origin.  Arts.  46  and  47 
subject  residents  to  the  jurisdiction  of  the  place  of  domicil 
and  provide  for  federal  legislation  as  to  temporary  settle- 
ments and  to  prevent  double  taxation. 

"Art.  48.  A  federal  law  shall  provide  for  the  regulation 
of  the  expenses  of  the  illness  and  burial  of  indigent  persons 
amenable  to  any  Canton,  who  have  fallen  ill  or  died  in  an- 
other Canton." 

"Art.  49.  Freedom  of  conscience  and  belief  is  inviolable." 
No  person  can  be  compelled  to  take  part  in  religious  services 
or  pay  taxes  to  a  religious  body  to  which  he  does  not  belong. 
Art.  50  gives  the  public  authorities  supervision  of  religious 
bodies  with  power  to  determine  their  controversies.     Art.  51 


SWITZERLAND  563 

excludes  the  order  of  Jesuits  from  Switzerland  and  authorizes 
the  exclusion  of  any  other  dangerous  order. 

"Art.  52.  The  foundation  of  new  convents  or  religious 
orders,  and  the  reestablishment  of  those  which  have  been 
suppressed  are   forbidden." 

Art.  53  makes  civil  status  and  records  thereof  and  control 
of  places  of  burial  subject  to  civil  authority. 

Art.  54  secures  freedom  in  contracting  marriage  and  gives 
the  wife  the  citizenship  of  her  husband. 

Art.  55  guarantees  freedom  of  the  press,  but  allows  the 
suppression  of  abuses  by  the  cantons. 

Art.  56  allows  freedom  in  forming  associations  except  for 
unlawful  purpose. 

"Art.  57.     The  right  of  petition  is  guaranteed." 

"Art  58.  No  person  shall  be  deprived  of  his  constitu- 
tional judge.  Therefore  no  extraordinary  tribunal  shall  be 
established.     Ecclesiastical  jurisdiction  is  abolished.'' 

Art.  59.  Suits  for  personal  claims  must  be  brought  in  the 
domicile  of  a  resident  solvent  debtor. 

"Imprisonment  for  debt  is  abolished." 

"Art.  60.  All  the  Cantons  are  bound  to  treat  the  citizens 
of  the  other  confederated  states  like  those  of  their  own  state 
in  legislation  and  in  all  judicial  proceedings." 

"Art.  61.  Civil  judgments  definitely  pronounced  in  any 
Canton  may  be  executed  anywhere  in  Switzerland." 

Arts.  62  and  63  abolish  exit  duties  on  property. 

Art.  64.  The  Confederation  has  power  to  make  laws  on 
legal  competency,  commerce,  copyright  inventions  and  bank- 
ruptcy. 

"The  administration  of  justice  remains  with  the  Cantons, 
save  as  affected  by  the  powers  of  the  Federal  Court." 

"Art.  65.  No  death  penalty  shall  be  pronounced  for  a 
political  crime." 

"Art.  66.  The  Confederation  by  law  fixes  the  limits  within 
which  a  Swiss  citizen  may  be  deprived  of  his  political  rights." 

Art.  67  gives  the  Confederation  power  to  regulate  extra- 
flition  from  f)ne  canton  to  another. 

"Art.  68.     Measures   are    taken    bv    Federal    law    for   the 


564  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

incorixjration  of  persons  without  country  and  for  the  pre- 
vention of  new  cases  of  that  nature." 

"Art.  69.  Legislation  concerning  measures  of  sanitary 
poHce  against  epidemic  cattle  disease,  causing  a  common  dan- 
ger, is  included  in  the  powers  of  the  Confederation." 

"Art.  70.  The  Confederation  has  power  to  expel  from  its 
territory  foreigners  who  endanger  the  internal  or  external 
safety  of  Switzerland." 

"Art.  71,  With  the  reservation  of  the  rights  of  the  people 
and  the  Cantons,  the  supreme  authority  of  the  Confederation 
is  exercised  by  the  Federal  Assembly  which  consists  of  two 
sections  or  councils  to-wit : 

A.  The  National  Council. 

B.  The  Council  of  States." 

Arts.  72  to  79  provide  that  the  National  Council  shall  be 
composed  of  one  representative  for  each  20,000  persons  or 
major  fraction  and  gives  at  least  one  to  each  canton  and  half 
canton  of  a  divided  one.  All  Swiss  twenty  years  of  age  may 
vote  and  are  eligible  to  election.  The  term  is  three  years. 
The  Council  chooses  from  its  members  a  President  and  Vice- 
President  for  each  session. 

Arts.  80  to  83  relate  to  the  Council  of  States  which  con- 
sists of  two  representatives  from  each  canton,  and  chooses 
its  President  and  Vice-President  for  each  session. 

Arts.  84  to  94,  give  the  Federal  Assembly  legislative  power 
over  the  matters  within  the  control  of  the  Confederation.  A 
majority  of  each  Council  is  a  quorum  and  a  majority  of  those 
voting  is  required. 

"Art.  89.  Federal  laws,  enactments,  and  resolutions  shall 
be  passed  only  by  the  agreement  of  the  two  Councils. 

"Federal  laws  shall  be  submitted  for  acceptance  or  rejection 
by  the  people,  if  the  demand  is  made  by  30,000  voters  or  by 
eight  Cantons.  The  same  principle  applies  to  federal  reso- 
lutions which  have  a  general  application,  and  which  are  not 
of  an  urgent  nature." 

Articles  90  to  94  relate  to  elections,  voting  of  members  of 
the  Council  and  the  introduction  of  measures  and  sittings  of 
the  Council. 


SWITZERLAND  565 

"Art.  95.  The  supreme  direction  and  executive  authority 
of  the  Confederation  is  exercised  by  a  Federal  Council,  com- 
posed of  seven  members." 

Articles  96  to  104  provide  that  members  of  the  Federal 
Council  are  chosen  by  the  Councils  in  joint  session  for  a  term 
of  three  years,  and  they  also  choose  from  the  Council  a  Presi- 
dent and  Vice-President  for  one  year.  Members  are  dis- 
qualified from  holding-  any  other  office  or  following  any  other 
pursuit.  President  and  Vice-President  cannot  hold  two  years 
in  succession.  Four  members  of  the  Council  make  a  quorum. 
Members  have  the  right  to  speak  but  not  to  vote  in  either 
house. 

"Art.  105.  A  Federal  Chancery,  at  the  head  of  which  is 
placed  the  Chancellor  of  the  Confederation,  conducts  the 
secretary's  business  for  the  Federal  Assembly  and  the  Fed- 
eral Council."  The  Chancellor  is  chosen  by  the  Assembly  for 
three  years. 

"Art.  106.  There  shall  be  a  Federal  Court  for  the  ad- 
ministration of  justice  in  federal  concerns. 

"There  shall  be,  moreover,  a  jury  for  criminal  cases." 

"Art.  107.  The  meml>ers  and  alternates  of  the  Federal 
Court  shall  be  chosen  l)y  the  Federal  Assembly,  which  shall 
take  care  that  all  three  national  languages  are  re[)resented 
therein. 

"A  law  shall  establish  the  organization  of  the  Federal  Court 
and  of  its  sections,  the  number  of  judges  and  alternates, 
their  term  of  office  and  their  salary." 

Arts.  108  to  114  relate  to  the  organization,  powers  and 
jurisdiction  of  the  court,  which  extends  to  all  cases  in  which 
the  Confederation  is  a  party,  between  cantons  and  between 
cantons  and  persons  or  corporations,  involving  the  status  of 
persons,  and  important  cases  which  the  ])arties  agree  to  sul)mit 
to  it,  and  of  political  crimes  and  against  officials  acting  under 
federal  authority  and  over  questions  of  conflicting  jurisdic- 
tion and  constitutional  law. 

"Art.  118.  The  Federal  Constitution  may  at  any  time  be 
wholly  or  partially  amended." 

"Art.  I  19.  Complete  Auiendment  is  secured  through  the 
forms  refjuired  for  passing  federal  laws." 


566  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

"Art  1 20.  When  either  Council  of  the  Federal  Assembly 
passes  a  resolution  for  the  complete  amendment  of  the  Federal 
Constitution  and  the  other  Council  does  not  agree;  or  when 
fifty  thousand  Swiss  voters  demand  the  complete  amendment, 
the  question  whether  the  Federal  Constitution  ought  to  be 
amended  is,  in  either  case,  submitted  to  a  vote  of  the  Swiss 
people,  voting  yes  or  no." 

Art.   121.     (Ametidment  of  July  "j,  i8pi). 

"Partial  amendment  may  take  place  through  the  forms  of 
Popular  Initiative,  or  of  those  required  for  passing  federal 
laws. 

"The  Popular  Initiative  may  be  used  when  fifty  thousand 
Swiss  voters  present  a  petition  for  the  enactment,  the  aboli- 
tion or  the  alteration  of  certain  articles  of  the  Federal  Con- 
stitution. 

"When  several  different  subjects  are  proposed  for 
amendment  or  for  enactment  in  the  Federal  Constitution  by 
means  of  the  Popular  Initiative,  each  must  form  the  subject 
of  a  special  petition. 

"Petitions  may  be  presented  in  the  form  of  general  sugges- 
tions or  of  finished  bills.  When  a  petition  is  presented  in  the 
form  of  a  general  suggestion,  and  the  Federal  Assembly 
agrees  thereto,  it  is  the  duty  of  that  body  to  elaborate  a  partial 
amendment  in  the  sense  of  the  Initiators,  and  to  refer  it  to 
the  people  and  the  Cantons  for  acceptance  or  rejection.  If 
the  Federal  Assembly  does  not  agree  to  the  petition,  then  the 
question  of  whether  there  shall  be  a  partial  amendment  at  all 
must  be  submitted  to  the  vote  of  the  people,  and  if  the  ma- 
jority of  Swiss  voters  express  themselves  in  the  affirmative, 
the  amendment  must  be  taken  in  hand  by  the  Federal  As- 
sembly in  the  sense  of  the  people. 

"When  a  petition  is  presented  in  the  form  of  a  finished  bill, 
and  the  Federal  Assembly  agrees  thereto,  the  bill  must  l>e  re- 
ferred to  the  people  and  the  Cantons  for  acceptance  or  re- 
jection. In  case  the  Federal  Assembly  does  not  agree,  that 
body  can  elaborate  a  bill  of  its  own.  or  move  to  reject  the 
petition,  and  submit  its  own  bill  or  motion  or  rejection 
to  the  vote  of  the  people  and  the  Cantons  along  with  the 
petition." 


SWITZERLAND  567 

"Art.  122.  A  Federal  law  shall  determine  more  precisely 
the  manner  of  procedure  in  popular  petitions  and  in  voting 
for  amendments  to  the  Constitution." 

"Art.  123.  The  amended  Federal  Constitution,  or  the 
amended  part  thereof,  shall  be  in  force  when  it  has  been 
adopted  by  the  majority  of  Swiss  citizens  who  take  part  in 
the  vote  thereon  and  by  a  majority  of  the  States. 

"In  making  up  a  majority  of  the  States  the  vote  of  a  Half- 
Canton  is  counted  as  half  a  vote. 

"The  result  of  the  popular  vote  in  each  Canton  is  con- 
sidered to  be  the  vote  of  the  State." 

In  several  particulars  the  development  of  the  governmental 
system  of  Switzerland  is  unique.  From  the  first  advent  of  its 
Teutonic  population  there  has  been  a  settled  distrust  of  ar- 
bitrary power  and  a  disinclination  on  the  part  of  the  demo- 
cratic communities  to  submit,  for  any  purpose,  to  the  dicta- 
tion of  a  central  authority.  The  cantons  have  manifested 
a  willingness  to  combine  for  defense  against  Austrian  and 
other  rulers,  who  sought  to  impose  their  authority,  but  after 
success  have  preferred  to  retain  freedom  from  any  superior 
authority.  The  first  real  union  under  a  central  authority 
was  forced  on  them  by  France,  but  since  then  the  remodelled 
government  is  the  product  of  Swiss  genius.  They  have  had 
to  deal  with  people  differing  in  language,  ancestry  and  cus- 
toms, separated  by  natural  barriers  and  dwelling  under  a  great 
variety  of  conditions.  They  have  had  democratic  agricul- 
tural cantons  and  oligarchical  cities,  monastic  establishments 
and  Calvinists,  cantons  claiming  proprietary  rights  over  other 
districts,  and  a  vast  complication  of  petty  trade  restrictions 
and  vexatious  regulations  imposed  by  each  district  for  local 
advantage,  to  contend  with.  The  inherent  difficulties  of  es- 
tablishing a  system  just  and  satisfactory  to  the  German, 
French  and  Italian  elements,  to  urban  and  rural  communities, 
have  not  been  less  than  those  presented  to  statesmen  elsewhere. 
They  have  also  been  subjected  to  external  influences,  which, 
to  a  weaker  race,  would  have  been  irresistible,  but  which  they 
vvith  a  moral  and  physical  courage  never  excelled  by  any 
people  have  successfully  overcome.  Against  the  intrigues  of 
the   great   powers   they   have   presented    a    superior   code   of 


568  EVOLUTION  OF  GOVF.RNMENTS  AND  LAWS 

morals  and  superior  devulioii  to  the  true  interests  of  their 
country. 

The  initiative  and  referendum,  hy  which  the  people  retain 
in  their  own  hands  at  all  times  power  to  veto  the  acts  of  their 
representatives,  to  compel  action  by  them  on  matters  they 
will  not  undertake,  and  to  amend  even  the  fundamental  law 
whenever  they  see  lit,  is  a  natural  outgrowth  of  the  heredi- 
tary distrust  of  delegated  power.  The  Swiss  system  is  clearly 
the  most  democratic,  and  gives  the  mo«t  unrestricted  play  to 
the  law  of  social  growth  and  progress  of  any  ever  devised. 
At  the  same  time  the  process  which  is  marked  out  for  legisla- 
tion insures  full  consideration  of  the  question  acted  on,  antl 
guards  against  the  dangers  of  popular  passions  perhaps  as 
well  as  any  known  system.  These  dangers  are  usually  greatly 
magnified.  Unjust  systems,  by  which  a  few  profit  and  many 
suffer,  are  always  built  behind  the  protection  of  the  govern- 
mental system.  There  is  little  occasion  for  fearing  that  such 
systems  will  be  established  as  a  result  of  a  popular  vote,  but, 
whenever  clearly  pointed  out,  an  existing  one  is  likely  to  be 
more  quickly  gotten  rid  of  by  the  direct  action  of  the  i^eople 
than  in  any  other  manner.  It  is  almost  axiomatic  that  the 
deliberate  judgment  of  the  whole  people,  on  any  matter  of 
general  interest,  is  more  likely  to  be  right  than  that  of  a 
less  number,  entrusted  with  powers  and  privileges  distin- 
guishing them  from  the  multitude  and  viewing  the  matter 
from  the  standpoint  of  a  favored  class. 

In  practice  the  referendum  has  operated  mainly  as  a  check 
on  the  action  of  the  Federal  Assembly,  a  few  of  the  laws 
passed  by  it  having  been  rejected  by  the  people,  while  more 
than  five  to  one  of  the  enactments  of  the  assembly  have  been 
allowed  to  take  effect  without  any  call  for  submission  to  a 
popular  vote.  The  existence  of  the  power  in  the  hands  of  the 
people  to  reject  an  enactment  must  act  as  a  wholesome  check 
on  the  legislature,  and  the  initiative  tends  to  stimulate  action 
demanded  by  the  people. 

Another  marked  superiority  of  the  Swiss  system  over  that 
of  other  European  states  is  the  absence  of  a  standing  army, 
the  greatest  curse  which  the  governments  of  modern  Europe 
impose  on  their  people.     Switzerland  follows  a  settled  policy 


SWITZERLAND  569 

of  neutrality  in  all  the  wars  of  other  nations,  and  recognizes 
the  principle  of  arbitration  as  of  the  same  value  and  fulfilling 
the  same  mission  of  peace  in  the  settlement  of  disputes  be- 
tween nations  that  the  courts  perform  with  reference  to  the 
contentions  of  individuals  and  bodies  of  citizens  within  the. 
state.  The  ambition  of  military  leaders,  inherited  feelings  of 
hostility  between  nations,  and  ignorance  of  the  blessings 
which  may  be  derived  from  friendly  intercourse,  still  pro- 
duce that  most  lamentable  spectacle  of  great  nations  profess- 
ing civilization  and  Christianity,  groaning  under  the  weight 
of  crushing  military  establishments,  each  of  which  becomes 
the  main  reason  and  excuse  for  the  maintenance  of  the  other. 
Bern,  the  Swiss  capital,  has  also  become  the  seat  of  the 
most  advanced  governmental  combination  ever  yet  effected, 
the  international  Postal  Union,  a  governmental  combination, 
the  sole  purpose  of  which  is  to  facilitate  intercommunication 
between  the  peoj^le  of  all  the  nations  of  the  earth.  It  dis- 
charges one  of  the  highest  and  best  functions  of  government, 
a  useful  service  through  the  friendly  cooperation  of  all  na- 
tions in  a  surprisingly  economical  manner.  Perhaps  Swiss 
statesmen  are  not  entitled  to  especial  credit  for  the  success  of 
the  Union,  but  the  peaceful  principles  on  which  the  state  acts 
render  it  the  natural  hoiue  of  such  a  Union.  Switzerland, 
after  enduring  the  evils  of  the  lordship  of  one  canton  over 
the  people  of  another  under  a  claim  of  property  rights,  now 
has  no  subject  territory.  Wherever  Swiss  sovereignty 
reaches  are  Swiss  citizens  with  equal  political  rights.  The 
constitution  shows  evidences  of  a  desire  to  reach  better  ad- 
justment of  compensation  for  labor,  to  better  the  situation 
of  those  who  have  less  than  a  fair  share  of  the  fruits  of  in- 
dustry, but  it  cannot  be  said  that  any  principle  of  |)roperty 
rights  in  marked  advance  of  those  recognized  in  other  coun- 
tries has  been  accepted. 

.4 1(  fit  on' firs 
McCracken  :     Rise  of  the  Swiss  Republic. 
Colton  :     Annals  of  Switzerland. 
Stead  and  Hug:     Switzerland. 
Foreign  Constitutif)n. 
Encyclopaedia  Britannica. 


CHAPTER  XXIII 


France 


No  country  presents  a  more  instructive  history  in  the  hne 
of  our  study  than  France.  We  here  have  a  chance  to  ohscrve 
the  development  and  reconstruction  of  their  institutions  by 
a  people  substantially  homogeneous,  who  have  dwelt  in  the 
same  state  for  more  than  two  thousand  years.  The  French- 
men of  today  are  the  lineal  descendants  of  the  Gauls,  Belgians 
and  Iberians  of  the  days  of  Caesar,  with  some  admixture,  it  is 
true,  of  Roman  and  German  blood,  and  some  commingling  of 
Northmen.  The  record  of  events  from  the  time  of  the  Roman 
invasion  is  perhaps  more  full  and  complete  than  that  of  any 
other  country.  Nowhere  else  can  be  found  wider  extremes  or 
greater  variety  of  political  institutions  and  theories  of  gov- 
ernment. All  stages  of  social  organization  from  that  of  the 
small  semi-savage  tribe  to  the  vast  empire,  and  from  the  abso- 
lute despotism  to  the  commune,  have  been  exhibited.  Abject 
slavery  has  been  followed  by  the  theory  at  least  of  liberty, 
fraternity  and  equality.  Since  Rome  fell,  no  other  European 
country  has  exercised  so  profound  an  influence  on  the  insti- 
tutions of  other  states. 

The  earliest  inhabitants  of  whom  we  have  any  accounts 
include  Iberians,  presumed  to  have  been  the  earliest  comers, 
the  Gauls  and  their  kinsmen  the  Belgians.  The  descendants 
of  the  Iberians  still  dwell  on  the  slopes  of  the  Pyrenees  and 
are  called  Basques.  They  were  short  of  stature,  of  dark  com- 
plexion, resolute  and  tenacious  in  the  defense  of  their  homes, 
but  without  capacity  for  organization  on  a  large  scale.  The 
Gauls  of  early  days,  like  the  French  people  of  today,  were 
bright,  vivacious,  brave  and  intelligent,  but  they  too  had  made 
little  progress  in  the  organization  of  society.  They  dwelt  in 
\illages  mainlv,  but  had  some  walled  towns.  Caesar  describes 
them  as  divided  into  factions,  and  mentions  these  factions  as 

570 


FRANCE  571 

extending  into  every  clan  and  village.  The  ruling  classes  were 
divided  into  two  distinct  orders,  the  knights  and  warriors, 
whose  only  calling  was  war,  and  who  substantially  every  year 
carried  on  strife  with  some  neighbor,  and  the  Druid  priests, 
who  were  not  only  charged  with  the  management  of  religious 
rites,  but  also  were  the  judges  and  teachers  of  the  people. 
Beneath  these  ruling  classes  were  slaves  in  large  numbers, 
constituting  the  bulk  of  the  population.  The  authority  of  the 
Druids  was  very  great,  and  the  Roman  church  appears  to 
have  borrowed  some  of  its  forms  from  them.  One  method  of 
enforcing  their  judgments  was  by  excommunication  and  inter- 
dict, causing  everyone  to  fly  from  the  condemned  person  as  a 
being  accursed,  and  to  whom  they  could  give  no  aid  without 
calling  down  the  heaviest  penalties  on  themselves.  They  sac- 
rificed human  beings  to  their  gods,  preferably  criminals  and 
enemies,  but  for  want  of  these  the  innocent  were  taken,  and 
religious  enthusiasm  induced  some  to  voluntarily  become  vic- 
tims. In  their  exemptions  from  military  duty  and  from  taxes 
the  Druids  enjoyed  privileges  similar  to  those  of  the  later 
clergy.  In  the  use  of  torture  in  their  trials  and  of  burning  as 
a  punishment  they  furnished  precedents  for  the  Inquisition, 
and  they  ranked  the  crime  of  resisting  their  authority,  as  the 
later  church  did  that  of  heresy,  the  most  deadly  of  all  offenses. 
Yet  Caesar  praises  the  impartiality  of  their  justice,  and  gives 
them  credit  with  protecting  the  weak  as  well  as  the  strong. 
They  built  no  churches,  but  held  their  rites  in  the  groves. 
Whether  polygamy  was  practiced  is  not  made  very  clear,  but 
it  seems  that  it  was.  Caesar  says  that  at  marriage  the  husband 
added  to  the  wife's  dowry  an  equal  sum,  and  that  the  increase 
of  the  whole  was  kept  by  itself  and  belonged  to  the  survivor 
on  the  death  of  one  of  them.  The  husband  and  father  had 
the  power  of  life  and  death  over  his  wife  and  children.  Fu- 
nerals were  conducted  with  great  extravagance  and  ceremony, 
and  with  human  sacrifices  of  slaves  or  dependents  of  rich 
nobles.  The  Gauls  appear  to  have  passed  the  stage  of  common 
tenure  of  land  in  Caesar's  time,  for  he  speaks  of  the  Druids 
having  pow'er  to  decide  (jucstions  of  boundary.  They  were 
accustomed  to  the  use  of  monev,  and  in  the  useful  arts  were 


572  EVOLUTIOxN  OF  GOVERNMENTS  AND  LAWS 

considerably  in  advance  of  the  Germans.  The  Belgians  were 
more  like  the  Germans,  to  whom  they  were  nearer  and  more 
closely  related,  and  with  whom  they  were  almost  constantly 
at  war.  Some  progress  had  been  made  in  weaving  and  metal 
working.  Confederations  were  sometimes  formed  by  differ- 
ent tribes  for  defense  against  incursions  from  the  east,  but 
they  were  not  inclined  to  unite  for  aggressive  warfare. 

The  Greeks  at  an  unknown  date  settled  at  Marseilles  and 
established  Massalia,  which  ])ecame  an  important  trading  port, 
and  in  12J  B.C.  the  Romans  founded  the  town  of  Acjuae  Sex- 
tiae,  now  Aix,  and  spreading  out  over  the  adjacent  country 
formed  the  province  of  Gallia  Braccata,  of  which  as  a  Roman 
niunicipiuin  Narbonne  w-as  made  the  capital  in  ii8  B.C.  In 
the  time  of  Caesar  the  Helvetians  and  German  tribes  w'ere 
threatening  to  invade  Gaul,  and  Caesar's  first  campaigns  were 
against  them,  with  the  Gauls  seeking  his  assistance  and  pro- 
tection. Having  overcome  these  enemies,  Caesar  proceeded  to 
reduce  Gaul  to  the  Roman  authority,  and  by  50  B.C.  had  ac- 
complished the  task.  From  Gaul  as  a  basis  he  established  his 
power  over  Rome.  Roman  institutions  were  well  adapted  to 
the  tastes  and  needs  of  the  Gauls,  who  soon  became  thorough- 
ly Romanized.  The  work  of  organization  was  not  completed 
in  Caesar's  time.  In  27  B.C.  Augustus  established  three  new 
provinces,  in  addition  to  the  old  one,  out  of  the  territory  con- 
quered by  Caesar,  namely  Aquitania  in  the  southwest,  Lugdu- 
nensis  in  the  middle  and  Belgica  in  the  north.  The  population 
of  the  country  was  mainly  of  the  ancient  stock,  with  whom 
Roman  colonists  freely  mingled.  Though  there  were  some 
revolts  after  Caesar's  time,  they  were  soon  suppressed.  The 
Romans  brought  their  system  of  agriculture,  their  laws  and 
arts.  They  built  cities,  made  roads,  encouraged  commerce  and 
established  social  order. 

A  long  period  of  peace  and  rapid  advancement  in  civiliza- 
tion followed.  By  160  the  Christian  religion  was  introduced, 
and  during  the  next  hundred  years  it  spread  rapidly.  The 
country  was  substantially  exempt  from  inroads  of  foreign 
enemies  for  about  three  centuries.  Under  the  empire  Gaul 
played  an  important  part.     Antonius   Pius  was  a  native  of 


FRANCE  573 

Gaul.  In  the  last  half  of  the  third  century  Postumus  estab- 
lished a  Gaulic  empire,  which  was  continued  by  his  successors 
Victorinus  and  Tetricus.  In  236  the  Alemanni,  a  German 
tribe  unknown  to  the  Romans,  crossed  the  Rhine,  but  were 
driven  back,  and  about  the  same  time  the  Goths  appeared  on 
the  Danube.  During  the  next  half  century  there  were  many 
incursions  of  Franks  and  Alemanni  into  Gaul,  but  no  perman- 
ent conquest.  By  this  time  the  imperial  government  had  so 
ground  the  people  of  Gaul  with  taxation  that  they  were  thor- 
oughly impoverished,  and  a  notable  uprising  of  peasants  and 
slaves  took  place  in  285,  which  spread  over  the  north  of  Gaul 
and  added  to  the  miseries  of  the  people.  The  title  to  the  land 
was  held  by  a  few,  and  the  work  of  tillage  was  mainly  per- 
formed by  slaves.  The  Gauls  under  Roman  rule  relied  on  the 
imperial  government  for  protection,  and  when  the  period  of 
disorder  came,  they  were  an  easy  prey  to  their  more  warlike 
neighbors  across  the  Rhine,  who,  free  from  Roman  domina- 
tion, organized  expeditions  when  conditions  were  favorable. 
Thus  from  260  to  268  a  band  of  Franks  swept  through  Gaul 
into  Spain  and  finally  passed  into  Africa  and  disappeared. 
From  this  time  forward  there  was  more  or  less  border  warfare 
and  incursions  of  Germanic  tribes  into  Gaul,  some  of  whom 
effected  permanent  settlements. 

Early  in  the  fifth  century  commenced  that  movement  of 
people  which  put  an  end  to  Roman  rule  in  Gaul.  From  406  to 
409  there  was  a  deluge  of  invaders,  who  mercilessly  killed  the 
people  and  destroyed  their  property.  Cities  and  towns,  of 
which  a  great  number  had  been  built,  were  taken,  pillaged  and 
burned.  In  412  the  Visigoths  and  Burgundians  established 
kingdoms  in  the  south  of  Gaul.  In  451  Attila  and  the  Huns, 
w^ho  had  become  the  terror  of  Europe,  made  their  way  into 
Gaul  and  took  Orleans.  They  were  met  by  the  combined 
forces  of  Romans,  Gauls,  Goths  and  Germanic  tribes,  defeated 
at  Chalons  in  a  great  battle,  and  expelled  from  the  country. 

The  Franks,  from  whom  France  takes  its  name,  were  main- 
ly settled  in  the  neighborhood  of  the  lower  Rhine,  and  were 
divided  into  the  Salians  and  Ripuarians.  Though  prior  kings 
are  named,  their  history  is  unimportant,  and  with  Clovis  king 


574  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  the  Salian  Franks  of  Tournay  commences  the  P>ankish 
state.  Clovis  was  a  fierce,  cruel,  cunning  and  unscrupulous 
barbarian,  who  did  not  hesitate  to  take  the  hves  of  all  who 
stood  in  his  way,  often  with  his  own  hand,  but  he  was  suc- 
cessful in  extending  his  power  over  nearly  all  Gaul.  He  mar- 
ried a  Christian  maid,  Chlotilde,  who,  aided  doubtless  by  other 
influences,  converted  him  to  Christianity.  His  warriors  also 
were  baptized,  but  neither  he  nor  they  took  in  much  of  Chris- 
tian morality.  He  however  became  allied  with  the  Christian 
clergy,  who  aided  him  in  extending  his  power.  The  dynasty 
founded  by  Clovis  derives  its  name  from  one  of  his  ancestors, 
and  is  styled  the  Merovingian.  With  it  the  history  of  France 
as  a  nation  begins.  At  his  death  Clovis  left  his  kingdom  di- 
vided among  his  four  sons.  He  had  acquired  most  of  it  by 
conquest,  and  he  left  it  as  an  inheritance,  divided  according 
to  the  prevailing  German  custom  among  all  his  sons.  They 
fought  for  the  shares  of  each  other,  with  the  result  that 
Clotaire  got  it  all.  At  his  death  it  was  partitioned  among 
his  four  sons  and  again  united  under  Clotaire  H.  The  Mero- 
vingians ruled  from  511  to  752,  and  their  history  teaches  little 
but  the  evils  of  despotic  military  rule.  They  were  cruel,  per- 
fidious, debauched  and  many  of  the  later  ones  almost  idiotic. 
The  pernicious  principle  of  treating  political  power  as  property 
to  pass  by  inheritance  caused  untold  misery  and  misfortune 
to  the  people.  No  other  dynasty  illustrates  so  constantly  and 
forcibly  the  evil  consequences  of  passing  political  power  from 
father  to  son  without  regard  to  capacity  or  merit.  No  other 
dynasty  exhibits  in  more  disgusting  form  the  evils  of  despotic 
rule.  Not  kings  only,  but  queens  as  well,  displayed  their 
cruelties  and  vices.  The  stories  of  Fredegonde  and  Brune- 
child  are  typical  of  a  most  cruel  age  and  the  execution  of  the 
latter,  at  the  advanced  age  of  eighty  by  tying  her  to  the  tail 
of  an  unbroken  horse  by  the  hair  of  her  head,  one  arm  and 
one  foot,  of  the  possibilities  of  kingly  cruelty  under  Clotaire 
n.  Murder  and  rapine  lav  at  the  foundation  of  the  kingdom, 
and  morality  found  little  lodgment  in  the  palace  or  the  home 
of  the  great  landlord.  Christianity  was  for  them  merely  the 
name  of  a  superstition,  and  these   coarse   and  brutal   rulers 


FRANCE  575 

hoped  for  aid  in  their  cruel  deeds  from  the  unseen  power,  to 
whose  priests  they  gave  present  of  lands  and  goods. 

The  government,  laws  and  land  tenure,  which  developed 
as  a  result  of  the  conquest  of  the  Franks,  were  made  from 
three  widely  different  systems.  Before  the  advent  of  the 
Franks  the  Roman  law  furnished  rules  for  all  property  rights, 
land  tenure  and  inheritance,  as  well  as  for  determining  the 
status  of  citizens  and  slaves.  The  people  were  accustomed  to 
submit  to  the  cruel  exactions  of  the  tax  gatherers,  who  robbed 
them  of  their  substance  without  returning  any  considerable 
benefit  in  the  way  of  public  works  or  services.  Illiteracy  and 
ignorance  were  general,  and  the  moral  tone  of  society  low. 
A  large  proportion  of  the  people  was  held  as  slaves  to  the  rest. 
In  race  the  inhabitants  were  mainly  Gauls,  with  an  admixture 
of  Romans,  and  with  settlements  of  Goths  and  other  Germanic 
tribes  in  places.  The  Franks  had  never  been  subject  to  Roman 
rule  or  law.  They  preserved  and  followed  most  of  the  ancient 
German  customs,  though  the  power  of  the  king  had  been  con- 
siderably increased.  The  controlling  power  of  the  nation  still 
resided  in  the  assembly  of  freemen,  but  the  king  and  his  an- 
trustions,  the  followers  of  his  person,  had  become  a  military 
caste  and  largely  dominated  the  affairs  of  the  state. ^ 

Three  orders  of  people  had  been  formed  among  them.  The 
antrustions,  the  freemen  and  slaves,  whose  relative  importance 
may  be  judged  by  the  rate  of  composition  allowed  for  taking 
the  life  of  one  of  them.  For  the  antrustion,  six  hundred  sous, 
for  an  ordinary  freeman  two  hundred  sous  and  for  a  bondman 
forty-five  sous.  At  and  prior  to  the  time  of  Clovis  the  antrus- 
tions had  not  become  a  landed  aristocracy.  They  were  the 
companions  and  personal  followers  of  the  king,  who  fought 
with  him  and  received  a  share  of  the  booty  taken,  and  were 
accorded  a  degree  of  consideration  above  that  of  ordinarv 
freemen.  To  just  what  degree  the  ancient  German  system  of 
common  tenure  of  land  had  been  modified  it  is  difficult  to  de- 
termine, but  neither  the  idea  of  individual  ownership  of  an 

'  For  a  very  full  and  interesting  account  of  the  development  of  the 
laws  of  France  see  Broussaud's  French  Private  Law,  Continental  Legal 
History  Series,  vol.  3. 


576  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

inheritance  in  the  soil,  nor  of  feudal  tenure,  had  gained  gen- 
eral recognition.  In  religion  they  worshipped  the  fierce  Ger- 
man gods  without  the  intervention  of  any  priestly  order.  In 
domestic  life  they  were  monogamists,  and  their  women  were 
treated  as  companions.  Though  their  customs  admitted  slav- 
ery, slaves  were  not  numerous  among  them.  On  their  advent 
into  Gaul  they  found  the  Roman  Church.  It  had  supi)lanted 
the  ancient  Druids  and  already  owned  considerable  estates. 
Among  a  people  sunk  in  ignorance  and  prone  to  gross  super- 
stition, the  clerg}',  with  the  mystery  of  book  and  bell,  had 
gained  great  influence,  and  through  the  confessional,  absolu- 
tion, baptism,  marriage  and  the  many  functions  assumed  as 
pertaining  to  religion,  exercised  a  potent  authority.  Clovis 
adopted  this  religion,  and  his  soldiers  followed  him  to  baptism 
as  they  did  to  battle.  Though  in  after  times  contentions  some- 
times arose  between  the  princes  and  the  clergy,  the  two,  work- 
ing in  concert,  contributed  greatly  to  each  other's  power.  The 
princes  encouraged  the  support  of  the  church,  and  often  grant- 
ed it  great  possessions,  and  in  return  the  clergy  taught  the 
ignorant  multitude  the  divine  right  of  kings  to  rule  and  the 
sacredness  of  their  persons.  The  church  had  its  peculiar  list 
of  ofTenses  against  its  rules  and  authority  and  its  own  system 
of  punishing  oiTenders.  The  Franks  as  conquerors  became  the 
dominant  force,  and  in  all  matters  pertaining  to  the  rights  of 
Franks  the  Salic  law  prevailed,  but  it  was  crude  and  covered 
only  the  needs  of  a  comparatively  simple  people.  The  Roman 
law,  having  been  the  development  of  a  great  empire  during  a 
long  course  of  time,  was  of  far  greater  volume  and  complexity, 
but  owing  to  the  long  period  of  oppression,  the  general  ignor- 
ance and  the  inefficiency  of  the  judicial  system,  there  was  not 
much  knowledge  of  its  principles  among  the  people.  The 
existence  of  its  learning  and  refinements  in  scattered  volumes, 
which  few  even  of  the  ruling  class  could  read,  afforded  almost 
no  protection  to  any  one  in  his  rights.  The  canons  of  the 
church  were  of  more  living  force,  for  they  were  studied  and 
followed  by  the  clergy  in  all  matters  of  ecclesiastical  cogni- 
zance. The  earliest  code  of  Salic  law  extant  is  of  uncertain 
date,  but  must  have  been  written  subsequent  to  the  early  con- 


FRANCE  577 

quests  of  Clovis.  The  legislative  power  was  still  in  the  as- 
sembly of  freemen,  and  the  judicial  power  in  a  judicial 
assembly  of  freemen.  Punishments  were  almost  exclusively 
by  fines,  and  the  law  determined  the  distribution  of  weregeld 
among  the  kindred  of  a  murdered  man.  It  is  said  that  the 
Germans  knew  only  two  capital  crimes.  They  hanged  traitors 
and  drowned  cowards.  All  other  offenses  could  be  commuted 
in  money.  In  their  first  inroads  the  Franks  came  as  red-hand- 
ed spoilers.  The  plunder  taken  was  divided  among  the  con- 
querors. At  first  they  did  not  covet  land  so  much  as  cattle 
and  goods,  which  they  took  wherever  they  could  find  them. 
In  the  development  of  the  system  of  land  tenure  it  was  not  at 
first  the  custom  to  grant  great  fiefs  in  perpetuity,  or  even  for 
life.  In  that  system  which  afterward  became  so  general,  by 
which  the  power  and  dignity  of  the  nobles  were  measured  by 
the  tenure  and  value  of  their  lands,  the  first  step  hardly  con- 
tained a  hint  of  what  followed.  At  first  the  counts  were  sent 
to  rule  over  their  districts  for  a  year  only.  The  distribution 
of  the  counties  was  a  matter  debated  in  the  general  assembly, 
but  later  it  was  solely  for  the  king.  The  authority  of  the 
counts  was  renewed  from  time  to  time,  until  an  assignment  to 
a  county  was  generally  equivalent  to  a  term  for  life. 

Clovis  and  his  sons  raised  and  led  their  own  armies,  ap- 
pointed the  counts  who  ruled  in  the  counties  and  the  chiefs  of 
hundreds,  but  in  the  course  of  a  few  generations  the  inca- 
pacity of  the  kings  made  it  necessary  to  choose  more  vigorous 
leaders.  In  a  society  constituted  like  that  of  the  Franks  at 
that  time  the  chief  man  in  the  household  of  the  king,  where 
all  the  ])rincipal  men  congregated,  naturally  exercised  the 
authority  which  the  king  was  too  weak  or  too  indolent  to 
exert.  The  mayors  of  the  palace  were  sometimes  named  by 
the  kings  to  aid  them  in  their  struggles  with  the  lendes,  the 
antrustions,  and  sometimes  elected  by  the  lendes  in  opposition 
to  the  king.  While  the  kingdom  was  divided,  in  Neustria  the 
mayors  supported  the  interests  of  the  kings,  while  in  Austrasia 
they  sided  with  the  lendes.  The  mayors  assigned  the  lords  to 
their  fiefs,  raised  the  armies  and  led  them  to  l)attle.  Under 
Dagobert  T  and  his  son,  vSigebert  IT  of  Austrasia.  Pepin  of 


578  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Landen,  who  had  acquired  vast  possessions  and  great  mihtary 
prestige,  became  mayor  of  the  palace.  His  son  and  then  his 
grandson  Pepin  succeeded  to  his  authority.  The  latter  for 
twenty-seven  years  and  during  the  time  of  four  kings  exer- 
cised the  chief  power  in  the  state.  He  sought  to  pass  his 
power  at  his  death  to  an  infant  grandson  by  his  first  wife,  but 
the  nobles  would  not  have  it  so  and  chose  his  son  Charles  in- 
stead. Charles  became  the  real  ruler,  and  the  kings  were 
mere  puppets  in  his  hands.  The  invasion  of  the  Mohamme- 
dans and  their  crushing  defeat  by  the  Christians  under  the 
command  of  Charles  at  Poiters  in  732  gave  him  the  name  of 
Martel  and  greatly  strengthened  his  position.  Charles  found 
it  necessary  in  order  to  carry  on  his  wars  to  make  the  church 
contribute,  and  did  not  hesitate  to  lay  hold  of  church  lands 
and  confer  them  on  his  followers.  Still  he  was  a  zealous 
churchman,  and  labored  not  only  to  drive  back  the  Moslems, 
but  also  to  propagate  Christianity  in  Germany.  At  his  death 
he  transmitted  a  divided  authority  to  his  two  sons,  but  one 
of  them  soon  withdrew  to  a  monastery,  leaving  Pepin  sole 
mayor  and  ruler  in  fact. 

In  752,  with  the  advice  and  consent  of  the  Pope,  the  gen- 
eral assembly  of  lords  and  bishops  proclaimed  Pepin  king  and 
put  an  end  to  the  puppet  kings.  During  the  times  of  the 
mayors  of  the  palace  much  progress  had  been  made  in  the 
development  of  the  feudal  system.  Land  had  become  the 
source  of  wealth  and  power.  The  possessions  of  the  church 
had  been  extended  at  times  and  taken  away  at  others.  The 
many  partitions  of  the  kingdom  and  the  constant  struggles 
between  the  descendants  of  Clovis,  and  later  the  mayors  of 
the  palace,  for  the  whole  kingdom,  with  the  frequent  murders 
and  confiscations,  brought  new  lands  to  the  king,  which  he 
found  it  necessary  to  confer  on  his  retainers  in  consideration 
of  their  support.  Each  vassal  receiving  a  benefice  became 
bound  to  furnish  aid  to  the  sovereign,  corresponding  with 
the  size  of  his  estate.  In  this  manner  much  land  had  become 
the  subject  of  tenure  as  benefices  from  the  king  or  mayor, 
though  most  of  it  was  then  held  only  for  life. 

The  succeeding  reign  of  Charlemagne  stands  out  in  bold 


FRANCE  579 

relief  in  a  barbarous  age.  The  extension  of  his  empire  and 
the  system  of  government  he  estabhshed  have  already  been 
considered  in  the  chapter  on  Mediaeval  Europe  and  will  not 
be  here  repeated.  The  feudal  system  as  developed  in  France 
has  also  been  treated  in  the  same  connection.  The  house 
established  by  Pepin  reached  its  acme  of  intellectual  vigor  as 
well  as  of  power  in  Charlemagne.  With  all  his  prudence  in 
affairs  of  state,  he  adhered  to  the  ancient  Frankish  custom  of 
dividing  his  empire  as  an  inheritance  among  his  sons,  and  this 
custom  continued  under  the  Carlovingians  as  in  the  first  dyn- 
asty. The  nobility,  from  being  personal  followers  of  the  king, 
entrusted  by  him  with  the  administration  of  local  affairs  for 
such  limited  period  as  he,  with  the  assent  of  the  popular  as- 
sembly might  fix,  had  grown  in  power  and  asserted  a  title  to 
great  estates;  and  from  the  time  of  Charlemagne  the  bene- 
fices began  to  be  treated  as  inheritances  which  the  king  had  no 
power  to  take  away.  With  a  firm  hold  on  the  land  the  feeling 
of  dependence  on  the  king  abated,  and  the  system,  which  was 
originally  designed  to  create  a  strong  bond  of  union  between 
king  and  vassal,  by  a  very  natural  evolution  rendered  the  king 
dependent  on  his  great  vassals  and  reduced  his  authority  to  a 
shadow.  The  genius  and  energy  of  Charlemagne  led  him  to 
take  the  utmost  pains  to  gather  information  with  reference  to 
the  condition  of  affairs  in  every  part  of  his  empire.  He  held 
frequent  assemblies  of  the  freemen,  where  laws  and  regu- 
lations were  discussed.  From  these  the  double  advantage 
accrued  of  gathering  information  from  the  people  drawn 
together  from  different  parts  of  the  states  for  his  own  en- 
lightenment, and  the  dissemination  of  knowledge  and.  instruc- 
tion in  laws  and  principles  of  government  among  the  leading- 
citizens.  He  also  employed  messengers,  constantly  traveling- 
over  the  country,  to  learn  and  report  how  the  local  affairs 
were  being  administered  and  what  the  needs  of  the  people 
were.  Nothing  indicates  more  strongly  his  wonderful  energy 
and  capacity  than  his  success  in  gaining  and  distributing  in- 
formation. Herein  lies  one  of  the  greatest  inherent  weak- 
nesses of  a  government  by  a  single  ruler.  He  cannot  and  does 
not  know  much  about  the  conditions  and  the  needs  of  his  sub- 


s8o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

jects.  In  the  nature  of  things  a  single  person  can  be  in  but 
one  place  and  investigate  but  one  subject  at  a  time.  In  a  great 
kingdom  there  are  thousands  of  places  and  subjects  requiring 
careful,  patient,  intelligent  consideration,  and  often  vigorous 
action.  To  the  indolent  king  in  his  palace  with  his  dissolute 
courtiers  the  needs  of  the  times  are  almost  unknown,  and 
often  the  capacity  to  act  efficiently  is  wanting.  The  task  is 
altogether  too  great  even  for  the  greatest  of  men.  This  truth 
was  well  illustrated  in  the  succeeding  reign  of  Louis  the  Pious, 
who  is  characterized  as  moral,  cultured  and  actuated  by  the 
highest  motives  and  purposes,  yet  in  his  tastes  he  was  modest 
and  retiring,  preferring  solitary  study  to  mingling  with  the 
throng.  The  government  of  such  an  empire  imperatively  de- 
manded the  utmost  vigor  in  gathering  knowledge  of  what 
was  going  on  and  the  most  prompt  and  resolute  action.  It 
was  not  an  age  when  moral  worth  in  a  king  brought  volun- 
tary compliance  with  his  wishes.  The  soldiers,  who  had 
followed  his  father,  Charlemagne,  in  his  victories,  were  fierce 
barbarians.  Charles  himself  could  be  bloody  and  cruel  when 
he  deemed  it  useful,  as  in  the  case  of  the  revolted  Saxons, 
when  he  caused  the  heads  of  four  thousand  five  hundred  of 
their  chief  men,  whom  he  had  summoned  to  meet  him,  to  be 
all  cut  off  in  one  day.  Gentleness  and  humility  were  virtues 
not  then  appreciated  in  a  ruler.  Courage,  strength  and  an 
iron  will  were  recpiisite  tu  the  control  of  a  turbulent  and  im- 
moral nobility.  The  reign  of  the  pious,  kind  Louis  was  of 
weakness,  disorder  and  civil  war.  In  the  laws  which  he  pro- 
mulgated the  wonderful  diversity  of  genius  and  marvelous  in- 
tellectual energy  of  Charlemagne  is  displayed.  His  Capitu- 
laries included  articles  inculcating  moral  precepts,  regulating 
matters  political  and  of  administration,  prescribing  penalties, 
regulating  civil  rights,  relating  to  religious  matters,  canonical 
observances  and  incidental  matters.  The  Capitularies  were 
lacking  in  system  and  logical  arrangement,  and  many  of  them 
were  mere  expressions  of  sentiment  on  some  moral  or  religious 
subject,  but  taken  all  together  they  exhibit  the  activities  of  a 
remarkable  mind,  capable  at  the  same  time  of  formulating 
rules  and  carrying  them  into  practical  operation.    Unlike  some 


FRANCE  S8i 

of  his  successors,  Charles  was  not  afraid  of  learning,  but  had 
a  school  in  the  palace  conducted  by  the  best  teachers  he  could 
obtain,  and  he  encouraged  the  dissemination  of  such  learning 
as  was  then  taught.  There  was  too  much  ignorance  and  bar- 
barism for  him  to  fear  the  effects  of  learning  among  the 
people.  It  was  a  most  laudable  command  he  gave  to  the  bishops 
and  abbots,  that  in  the  cloistral  schools  "they  should  take  care 
to  make  no  difference  between  the  sons  of  serfs  and  of  free- 
men, so  that  they  might  come  and  sit  on  the  same  benches  to 
study  grammar,  music  and  arithmetic."  Charles  ruled  forty- 
six  3'ears  from  768  to  814  with  Aix  la  Chapelle  as  his  capital 
and  an  empire  covering  parts  of  Italy  and  Germany  and  all  of 
France.  The  empire  he  established  fell  apart  under  his  suc- 
cessors, and  the  Carlovingian  dynasty  came  to  an  end  in  987, 
prior  to  which  time  thirteen  kings  of  that  race  sat  on  the 
throne  of  France.  During  this  period  there  were  many  incur- 
sions of  the  Northmen,  who  ravaged  the  coasts,  ascended  the 
rivers,  took  and  pillaged  many  of  the  chief  towns.  These  be- 
came more  frequent  and  in  larger  numbers  until  the  reign  of 
Charles  the  Simple,  when  the  Northmen  under  the  lead  of  Rolf 
settled  at  Rouen.  In  912  Rolf  was  given  as  a  fief  the  lands 
he  and  his  followers  had  conquered  and  became  a  vassal  of  the 
king.  The  Normans  settled  down  to  agriculture,  and  no  fur- 
ther incursions  ensued. 

The  Magyars  made  inroads  from  910  to  954  in  the  eastern 
provinces  but  effected  no  permanent  settlement.  The  feudal 
system  continued  to  grow,  and  the  inheritance  bv  the  sons  of 
the  great  vassals  of  their  fiefs  became  an  established  rule.  The 
German,  Italian  and  French  portions  of  the  empire  fell  apart 
in  843.  The  provinces  were  treated  as  property,  to  be  bestow- 
ed and  distributed  according  to  the  king's  pleasure,  and  France 
was  divided  to  meet  the  varying  conditions.  The  progress 
made  in  the  development  of  the  inheritance  of  fiefs  is  indicated 
by  a  capitulary  of  Charles  the  Bald  in  877. 

"If  after  our  death  any  of  our  lieges  moved  by  love  for  God 
and  our  person  desires  to  renotmcc  the  world,  and  if  he  have 
a  son  or  other  relative  capable  of  serving  the  public  weal,  let 
him  be  free  to  transmit  him  his  benefices  and  his  himor  accord- 


582  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ing  to  his  pleasure.  If  a  count  of  this  kingdom  happen  to 
die  and  his  son  be  about  your  person  we  will  that  our  son,  to- 
gether with  those  of  our  lieges  who  may  chance  to  be  the 
nearest  relatives  of  the  deceased  count,  as  well  as  with  the 
other  officers  of  the  said  countship,  and  the  bishops  of  the 
diocese  wherein  it  is  situated,  shall  provide  for  its  administra- 
tion until  the  death  of  the  heretofore  count  shall  have  been 
announced  to  us  and  we  have  been  enabled  to  confer  on  the 
son  present  at  our  court  the  honors  wherewith  his  father  was 
invested."  Thus,  while  the  king  nominally  retained  the  right 
to  confer  the  fief  at  the  death  of  the  tenant,  he  recognized  the 
right  of  the  heir  to  take  it.  During  this  period  the  power  of 
local  administration  and  the  ownership  of  land  had  become 
consolidated.  The  counts,  who  under  Charlemagne  were 
merely  his  local  officers,  had  all  become  great  landowners  and 
ruled  their  estates  because  they  owned  them.  Political  power 
passed  by  inheritance  with  the  land.  Under  the  Carlovingians 
the  feudal  system  continued  its  development,  and  by  the  end 
of  that  dynasty  the  great  lords  and  the  heads  of  the  church 
represented  the  political  power  of  the  state.  Subinfeudation 
had  become  a  part  of  the  system,  and  the  great  lords  had  their 
vassals  holding  considerable  estates  with  other  vassals  below 
them.  The  advantages  of  connection  with  the  ruler  of  the 
district  led  those  holding  allodial  lands  to  give  them  to  the 
lord  and  receive  them  back  as  fiefs.  By  so  doing  the  tenant 
became  a  person  of  greater  consideration,  entitled  to  a  larger 
composition  in  case  of  injury,  exempted  from  the  confiscation 
of  his  property  for  failure  to  appear  in  court  or  obey  the 
judge's  orders,  and  from  trial  by  ordeal  of  boiling  water  for 
petty  crimes.  The  immediate  vassal  of  the  king  could  not  be 
compelled  to  testify  in  court  against  another  vassal,  nor  to 
swear  in  person  at  all,  but  only  by  the  mouths  of  his  own 
vassals.  Thus  there  was  great  advantage  in  holding  directly 
from  the  king.  This  process  of  converting  the  aJlndimn,  or 
independent  tenure  of  lands,  into  fiefs  became  most  active 
under  the  weak  kings,  when  the  local  lords  1:)ecame  the  real 
rulers,  unrestrained  l>y  any  central  authority.  It  continued 
under  the  third  dynasty.     As  to  much  of  the  land,  the  church- 


FRANCE  583 

men  held  the  places  of  feudal  lords,  and  archbishops,  bishops 
and  abbots  were  temporal  rulers,  who  took  a  leading  part  in 
national  affairs. 

On  the  death  of  Louis  the  Sluggard,  the  last  of  the  Carlov- 
ingians,  in  987,  the  lords  spiritual  and  temporal  met  at  Sanlis, 
and  Adalberon,  archbishop  of  Reims,  induced  those  present  to 
put  off  the  choice  of  a  king  till  a  more  general  meeting  could 
be  held,  and  to  swear  to  the  duke  of  Paris  "between  his  hands" 
that  in  the  meantime  they  would  do  nothing  in  the  way  of  the 
election  of  a  king.  About  the  last  of  June  they  reassembled 
and,  putting  aside  as  unworthy  Charles  of  Lorraine,  a  lineal 
descendant  of  Charlemagne  and  uncle  of  the  late  King  Louis, 
on  motion  of  the  archbishop  they  chose  Hugh  Capet,  count  of 
Paris,  a  descendant  of  that  Count  Eudes  who  had  stoutly  de- 
fended Paris  against  the  siege  of  the  Northmen,  as  king.  He 
was  thereupon  proclaimed  and  crowned  king  by  the  metropoli- 
tan. He  was  thus  made  king  by  the  churcli  and  the  feudal 
lords,  and  the  dynasty  so  established  was  a  feudal  one  under 
church  influence.  In  return  for  kingly  aid  the  church  taught 
the  divine  right  of  the  king  to  rule  and  the  doctrine  of  sub- 
mission and  obedience  to  his  authority,  no  matter  how  unjustly 
or  oppressively  exercised. 

In  the  election  of  Capet  the  French  clergy  exhibited  excep- 
tional independence,  for  Pope  John  XVI  sustained  the  claims 
of  Charles.  The  reign  of  Hugh  Capet  lasted  only  from  987 
to  996.  On  his  death  his  son  Robert  succeeded  him,  and  he 
and  his  son  Henry  and  grandson  PhiHp  ruled  till  1108.  Capet 
and  his  successors  were  great  landowners  and  ruled  as  counts 
of  Paris  over  their  estates  and  province.  The  kingly  office 
gave  added  prominence  rather  than  a  great  increase  of  power. 
The  king  had  feudal  superiority  and  precedence  over  his  great 
vassals,  whom  he  had  a  right  to  call  on  to  aid  him  in  his  wars, 
but  he  could  not  pass  the  vassals  by  and  command  the  follow- 
ers under  them.  Within  his  own  district  the  feudal  lord 
brooked  no  dictation  as  to  the  conduct  of  local  affairs,  even 
from  the  king.  The  king's  court,  however,  was  the  fountain 
of  honor  and  distinction,  and  kingly  power,  though  not  vig- 
orously exercised  during  this  period,  was  more  than  a  shadow. 


584  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

This  was  a  time  of  freedom  from  foreign  wars.  The  vassals 
fought  their  private  wars  and  the  king  sometimes  took  part 
in  them.  In  the  time  of  Capet  there  was  some  resistance  to 
his  authority  by  foHowers  of  the  Carlovingians,  but  they  were 
subdued. 

That  the  common  people  felt  the  grinding  oppression  of  the 
system  is  evidenced  by  revolts  of  the  peasants,  one  of  which 
occurred  in  Normandy  and  was  suppressed  with  great  barbar- 
ity. The  church,  too,  began  to  exhibit  cruel  jealousy  of  any 
questioning  of  its  authority,  and  the  burning  of  heretics  be- 
came one  of  its  functions.  The  relations  of  king  and  vassals 
are  well  illustrated  by  the  aid  afforded  by  King  Henry  I  to 
young  William  of  Normandy,  against  his  revolted  vassals,  aid- 
ed by  Guy  of  Burgundy,  and  later  by  the  war  between  King 
Henry  and  William  in  which  the  king  was  defeated  by  Wil- 
liam in  two  battles.  The  king  died  soon  after  and  William 
appeared  at  the  coronation  of  his  son  Philip,  for  whom  he 
fought  against  his  revolted  subjects.  It  may  almost  be  said 
that  private  war  was  so  general  and  inseparable  an  incident  of 
the  times  that  it  did  not  imply  real  enmity  between  the 
combatants. 

This  was  the  age  when  knighthood  flourished.  It  was  es- 
sentially a  military  order  of  mounted  and  armored  warriors. 
The  code  of  duty  and  honor,  to  which  a  knight  was  sworn, 
exhibits  a  strange  blending  of  pure  Christian  virtues  and  as- 
pirations, with  wars'  savagery.  Many  different  orders  of 
knighthood  were  formed  during  the  crusades.  In  the  earliest 
stages  knighthood  was  connected  with  the  feudal  system  of 
land  tenure  and  implied  the  possession  of  a  fief  of  sufficient 
value  to  maintain  the  knight,  supply  him  a  horse  and  armor 
and  means  to  defray  his  expenses  during  the  customary  period 
of  knightly  service  in  the  wars  of  his  over  lord.  There  were 
various  methods  of  conferring  knighthood.  That  deemed 
most  honorable  was  for  valiant  service,  and  conferred  by  the 
over  lord  on  the  field  of  battle.  The  members  of  the  knightly 
orders  of  fighting  priests,  which  were  organized  during  the 
crusades,  were  not  necessarily  holders  of  fiefs,  or  of  any  lands. 
In  course  of  time  knighthood  came  to  be  conferred  only  on 


FRANCE  58s 

descendants  of  the  nobility.  The  ceremony  of  investiture  might 
be  purely  military  or  a  combination  of  both  religious  and  mili- 
tary rites.  When  conferred  in  times  of  peace  with  full  re- 
ligious ceremonies,  the  candidate  for  knighthood  was  required 
to  first  purify  himself  in  a  bath  and  clothe  himself  in  a  white 
tunic,  symbolical  of  purity,  a  red  robe,  symbolical  of  the  blood 
he  would  shed  for  the  faith,  and  a  black  coat,  emblematic  of 
the  death  awaiting  all  men.  He  must  fast  for  twenty-four 
hours,  then  enter  the  church  and  spend  a  night  in  prayer. 
After  confession  he  received  the  communion,  and  often  listen- 
ed to  a  sermon  on  the  duties  of  knighthood.  He  then  ad- 
vanced to  the  altar  with  the  knight's  sword  hanging  from  his 
neck.  This  the  priest  took  off,  blessed  and  replaced  on  his 
neck.  He  then  knelt  before  his  superior  lord  and  having  been 
duly  questioned  and  made  the  required  responses,  received  his 
spurs,  coat  of  mail,  cuirass  and  sword  and  was  dubbed  knight 
by  receiving  three  blows  from  the  lord  with  the  flat  of  the 
sword  on  his  shoulder  or  neck.  The  knightly  oath  bound  him 
above  all  to  be  a  bold  and  constant  fighter,  a  fierce  barbarian  in 
the  service  of  his  king,  his  overlord  and  the  church,  but  to  up- 
hold the  rights  of  widows,  orphans  and  damsels,  to  injure  no 
one  maliciously  nor  fight  for  gain,  but  only  for  glory  and 
virtue,  to  guard  the  honor  and  rank  of  his  comrades  and  do  no 
trespass  against  them,  to  be  truthful  and  keep  faith  inviolably 
with  all  the  world  and  aid  one  another,  to  shun  no  danger,  nor 
take  pay  from  any  foreign  prince,  to  live  in  order  and  disci- 
pline when  in  command  of  troops,  to  faithfully  defend  females 
in  his  charge  and  do  them  no  evil,  that  being  challenged  to 
equal  combat  he  would  not  refuse  to  fight,  that  in  the  pursuit 
of  honor  he  would  dare  and  do  his  utmost,  "that  above  all 
things  he  would  be  faithful,  courteous  and  humble,  and  would 
never  be  wanting  to  his  word  for  any  harm  or  loss  that  might 
accrue  to  him."  Had  the  knights  generally  strictly  adhered  to 
these  precepts,  many  of  which  breathe  the  purest  and  loftiest 
sentiments,  the  world  would  have  progressed  rapidlv  from  its 
degraded  state,  but  unfortunately  the  part  most  faithfully  fol- 
lowed was  that  which  enjoined  fighting  and  bloodshed.  The 
Christian  xirtues  <»f  tnilh fulness  and  jjrotection  to  the  weak 


586  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

were  far  too  often  neglected.  Still  this  kinghtly  code  exer- 
cised a  profound  inlluence  on  suciety.  The  times  were  a 
strange  mixture,  in  church  and  monastery  might  be  found 
zealots  struggling  to  attain  an  ideal  purity  and  holiness  by 
the  sacrifice  of  all  wordly  comfort  and  enjoyment.  Fasts, 
vigils,  scourgings  and  all  manner  of  mortitications  of  the 
flesh  were  self-inflicted  and  patiently  endured  to  attain  spirit- 
ual puriflcation.  On  the  other  hand  some  churches  and  mon- 
asteries were  the  homes  of  ambitious  men,  who  cunningly 
sought  wealth  and  power  or  lived  as  idle  debauchees,  secretly 
scofiing  at  virtue,  religion  and  morality.  It  was  the  age  of 
discord  and  of  superstition.  The  estate  of  each  petty  noble 
was  essentially  a  separate  sovereignty,  from  which  the  com- 
mon herd  were  never  allowed  to  wander.  There  was  no  inter- 
course between  those  dwelling  at  a  distance  from  each  other, 
unless  they  were  of  knightly  rank.  At  the  king's  court  and 
at  the  tournaments  the  knights  gathered  for  their  fierce  sports. 
Education  was  wholly  neglected  among  the  common  herd  and 
hardly  less  among  the  nobles;  even  among  the  monks  many 
were  illiterate,  and  the  learning  of  the  clergy  w^as  sadly  de- 
ficient. Yet  in  some  quiet  cells  there  were  earnest  students 
and  patient  scholars  who  sought  light  and  truth  with  great 
diligence.  This  was  the  age  which  brought  forth  William  of 
Normandy,  the  conqueror  of  England,  a  bastard  son  oi  Count 
Robert,  descended  from  Rolf  the  Northman,  who  had  won 
his  foothold  there  al)out  a  century  and  a  half  before  the  inva- 
sion of  England.  William's  mother  was  the  daughter  of  a 
tanner,  and  it  is  probable  that  he  owed  much  of  his  vigor  and 
ability  to  her.  By  reason  of  the  seafaring  habits  of  the  Nor- 
mans and  their  proximity  to  England,  there  was  much  inter- 
course across  the  channel.  On  Sept.  2y,  1066,  William  sailed 
with  his  fleet  to  efifect  the  conquest  of  England.  How  large 
a  force  he  took  or  in  how  many  or  how  large  ships  he  sailed 
we  have  no  definite  record,  but  he  won  the  battle  of  Hastings 
and  gained  the  English  throne.  Thus  a  vassal  of  the  French 
king  became  ruler  of  England.  The  claims  of  the  Norman  to 
rights  in  France  as  a  feudal  lord  became  a  prolific  source  of 
contention  and  wars  between  the  two  countries,  from  which 
little  but  evil  resulted  to  the  people  of  both. 


FRANCE  587 

Stirred  by  the  preaching  of  Peter  the  Hermit  the  First  Cru- 
sade started  in  1096  to  free  the  Holy  Land  and  clear  the  way 
for  the  pilgrims.  Since  the  age  of  Charlemagne  there  had 
been  no  foreign  wars  to  take  the  people  of  France  into  far  dis- 
tant lands.  There  was  but  little  commerce,  and  the  inter- 
course between  distant  people  was  exceedingly  limited.  The 
pilgrimages  of  the  devout  to  Jerusalem  afforded  almost  the 
only  occasion  for  gaining  knowledge  of  foreign  countries,  and 
these  of  necessity  were  not  in  great  number.  The  people  of 
France,  always  noted  for  their  daring  and  generous  impulses, 
were  profoundly  moved  by  the  accounts  of  the  suft'erings  of 
the  pilgrims  and  the  profanation  of  the  Holy  City  by  the  in- 
fidels. France  furnished  a  large  portion  of  the  army  for  the 
first  crusade  and  its  most  noted  and  efficient  leaders,  Godfrey 
of  Bouillon,  Raymond  of  Toulouse,  Tancred  de  Hauteville 
and  other  less  noted  men  led  the  organized  force,  and  followed 
the  great  multitude  which  started  as  a  mob  and  ended  in  dis- 
aster. The  impulse  which  moved  the  crusades  was  not  moral 
but  religious.  Nothing  in  history  better  illustrates  the  dif- 
ference between  morals  and  religion.  The  people  were  pro- 
foundly stirred  by  the  preaching  of  Peter  and  his  details  of 
the  desecration  of  the  Holy  City  and  of  the  wrongs  and  in- 
dignities suffered  by  the  many  pilgrims,  who  sought  miracu- 
lous aid  from  a  spot  supposed  to  be  possessed  of  peculiar  vir- 
tures  because  of  its  association  with  Jesus,  the  apostles  and 
saints.  The  purpose  of  the  crusaders  was  war  against  the 
infidels,  for  whose  blood  they  thirsted.  In  passing  through  the 
intermediate  country  to  Constantinople,  being  unprovided  with 
supi)lies  or  money,  they  foraged  as  if  in  an  enemy's  country, 
and  were  guilty  of  all  manner  oi  brutality  and  excesses,  so 
that  they  were  quite  as  much  the  dread  of  the  Furopean  Chris- 
tians as  of  the  Moslems  of  Syria.  After  manv  delays,  much 
discord  and  sometimes  bloodshed  among  them,  the  crusaders 
on  the  15th  of  July.  1099,  took  Jerusalem  by  assault  and 
slaughtered  great  numbers  of  the  ATohammedans.  The  lead- 
ing purpose  had  been  accomplished,  and  Codfrey  de  Bouillon, 
refusing  the  title  of  king,  became  Defender  and  Baron  of  the 
Holy   Seinilchre.     Though   the  political  and   religious  conse- 


S88  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

quences  of  the  crusades  were  of  minor  importance,  the  edu- 
cational inlluences  were  very  great.  Not  only  from  all  parts 
of  France,  but  from  Spain,  England,  Italy,  Germany  and  in 
fact  the  whole  Christian  world,  the  boldest  and  most  enter- 
prising knights  were  gathered  to  light  for  the  faith  they  pro- 
fessed. They  journeyed  through  strange  lands  and  came  in 
contact  with  strange  people.  The  Greeks  of  the  eastern  em- 
pire were  scarcely  better  known  to  them  than  the  Turks, 
Arabs  and  Egyptians,  whom  they  came  to  fight.  The  rude 
Christians  saw  the  cities  and  gardens  of  the  East.  People 
were  moved  to  view  a  wider  horizon  and  to  long  for  knowl- 
edge of  distant  lands  and  alien  people.  This  is  the  greatest 
good  that  ever  results  from  distant  wars.  In  spite  of  the 
cruelty  and  bloodshed,  the  combatants  learn  to  know  and  to 
respect  each  other.  Instead  of  the  settled  hatred  of  distant 
enemies,  some  measure  of  respect  and  even  of  friendship  re- 
sults. Commerce  ifounded  on  mutual  benefit  develops,  and 
stimulated  by  trade  the  industries  of  each  land  take  on  new 
activities,  and  the  peaceful  intercourse  of  merchants  slowly 
but  surely  lays  the  foundation  for  lasting  peace  and  mutual 
good  will.  The  scattered  people  of  Europe,  who  from  the  fall 
of  the  Roman  power  had  dwelt  in  comparative  isolation  for 
six  centuries,  were  now  made  acquainted  with  each  other. 
Returning  crusaders  could  tell  from  personal  knowledge  of 
many  strange  people  and  distant  lands.  The  impulse  thus 
given  to  thought  and  the  desire  for  knowledge  which  it  stimu- 
lated were  of  the  greatest  importance  and  by  far  the  most 
valuable  of  all  the  results  of  the  crusades.  No  country  was 
represented  by  more  or  better  men  in  the  Christian  ranks 
than  France,  and  none  profited  more  from  the  educational  in- 
fluence. The  Christian  rule  in  Jerusalem  ended  in  1187  and 
was  never  productive  of  important  political  results.  None  of 
the  crowned  heads  took  part  in  the  First  Crusade,  but  the  sec- 
ond in  1 147  brought  out  King  Louis  of  France  and  the  Ger- 
man Emperor  Conrad.  Defeat  and  disaster  met  them.  When 
Saladin  took  Jerusalem  in  1187,  it  must  be  said  to  his  credit 
that  the  barbarities  exhibited  liy  the  Christians  on  their  entry 
were  not  repeated  by  the  ^Mohammedans,  and  he  even  paid  the 


FRANCE  589 

ransom  of  many  of  the  captives,  after  allowing  the  soldiers  to 
march  away. 

Subsequent  crusades  were  barren  of  substantial  results,  be- 
yond the  misery  they  caused  and  their  continued  educational 
influence.  Louis  IX  engaged  in  a  disastrous  expedition  in 
1248,  spending  the  six  following  years  in  Egypt  and  Syria, 
only  to  suffer  defeat  and  fall  a  prisoner  in  the  hands  of  the 
enemy.  After  paying  a  heavy  ransom  and  returning  to  France 
he  lost  his  life  in  an  attack  on  Tunis.  Louis  is  extolled  as  a 
model  prince  and  a  real  lover  of  truth  and  justice.  During 
the  years  of  peace  he  did  much  to  advance  the  welfare  of  his 
subjects.  One  of  the  greatest  evils  of  the  feudal  system  was 
the  exercise  of  judicial  power  by  the  baron  without  right  of 
appeal,  no  matter  how  great  the  disregard  of  the  law.  Louis 
appointed  itinerant  judges  and  established  courts  superior  to 
those  of  the  feudal  lords,  gave  a  right  of  appeal  in  the  last 
resort  to  himself  and  made  a  great  law  court  of  his  parlia- 
ment. He  restricted  feudal  warfare  among  the  barons,  and 
issued  a  code  of  laws  known  as  the  "establishments  of  Saint 
Louis."  Though  a  despotic  sovereign,  he  sought  to  rule  by 
fixed  principles,  which  are  generally  conducive  to  order.  In 
his  decisions  he  was  governed  by  what  he  regarded  as  the  law, 
rather  than  by  caprice  or  personal  considerations. 

The  extreme  of  vice  and  cruelty  which  excessive  religious 
zeal  may  attain  was  exhibited  in  the  crusade  against  the  Albi- 
gensians.  Their  crime  was  that  by  reason  of  the  admixture  of 
descendants  of  Greeks,  Romans,  Jews  and  Gauls  with  Goths, 
Arabs  and  traders  from  the  Mediterranean  ports,  the  people 
had  more  of  culture  and  refinement  and  more  breadth  of 
knowledge  and  liberality  of  sentiment  than  the  more  ignorant 
people  of  the  north.  This  necessarily  tended  to  a  ])erception  of 
the  narrowness  and  bigotry  of  the  clergy  and  to  a  questioning 
of  the  authfjrity  o<i  the  priesthood.  That  suppositious  crime, 
heresy,  develo])ed  under  such  conditions.  The  result  was 
that  a  crusade  was  preached  with  the  sanction  of  the  pope 
against  the  Albigensians,  and  a  vast  army  was  gathered,  not 
only  from  other  parts  of  France,  but  also  from  Germany,  and 
for  fifteen  vcars  from   tjo8  to   1223  0110  of  the  most  cruel 


590  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

wars  and  persecutions  of  history  was  waged  by  the  orthodox 
Christians  against  other  more  humane  and  enhghtened  Chris- 
tians. Though  the  pretext  for  this  crueky  was  rehgion  and 
the  good  of  human  souls,  the  power  of  the  church  was  at 
stake.  The  great  rehgious  corporation,  of  which  the  pope  was 
the  head,  was  quite  as  jealous  of  its  temporal  ascendency,  of 
its  revenues  and  its  supervision  over  temporal  rulers,  as  of 
mere  matters  of  belief.  Bishoprics  had  in  many  places  come 
to  be  treated  as  inheritances,  to  be  disposed  of  by  will  or  other- 
wise in  accordance  with  the  wish  of  the  incumbent.  The 
period  of  feudal  discord  following  the  breaking  up  of  the 
empire  of  Charlemagne  had  been  auspicious  for  the  extension 
of  the  power  of  the  church,  the  crusades  had  inspired  a  feeling 
of  unity  among  the  Christians,  and  made  the  Pojje,  as  the  head 
of  the  church,  by  far  the  most  conspicuous  figure  in  Europe. 

During  the  twelfth  century  France  was  split  into  many  states 
with  ever  changing  combinations,  due  to  wars,  marriages  and 
alliances.  The  establishment  of  the  Norman  dynasty  in  Eng- 
land induced  a  succession  of  wars  in  sui)port  of  the  claims  of 
English  kings  to  French  dominions.  The  growth  of  towns 
and  the  incipient  stages  of  the  development  of  burghers'  rights 
had  already  begun  in  the  reign  of  Philip  Augustus,  1180  to 
1223.  He  continued  the  privileges  of  forty-one  communes, 
which  had  been  granted  charters  before  his  time,  and  estab- 
lished forty-three  new  ones.  The  extremely  rudimentary  char- 
acter of  the  government  of  Paris  in  the  time  of  St.  Louis  is 
shown  by  the  fact  that  the  same  person  was  prefect,  mayor 
and  receiver  general  under  the  name  of  provost,  and  that  the 
office  was  a  purchasable  one.  Louis  ])ut  an  end  to  the  sale  of 
the  office  and  separated  it  from  the  receivership  of  the  royal 
domains.  He  also  prox'ided  registers  for  the  rules  of  the 
various  organizations  of  artisans,  the  masters  of  which  ap- 
peared before  the  provost  to  declare  and  have  recorded  their 
regulations.  Paris,  though  the  French  king's  capital,  was  not 
to  be  compared  in  importance  as  a  manufacturing  center  to 
the  Flemish  towns,  which  by  the  thirteenth  century  had  taken 
the  lead  in  the  manufacture  of  woolen  stufifs,  and  were  or- 
ganized on  republican  ])rinciples,  leagued  together,  with  agen- 
cies established  in  Lond'»n  and  elsewhere.     Their  trade  by  the 


FRANCE  591 

year  1300  had  become  very  extensive,  and  Flanders  was  the 
richest  and  most  populous  country  in  Europe.  In  that  year 
Philip  IV  added  it  to  France,  but  in  1302  met  a  crushing  de- 
feat at  the  hands  of  the  revolted  burghers. 

It  was  in  the  reign  of  Philip  1\',  Lc  Bel,  that  Pope  Boniface 
boldly  claimed  that  the  spiritual  power  included  the  temporal, 
and  hence  that  the  king  was  under  his  guidance.  This  Philip 
denied,  and  a  fierce  controversy  ensued  which  continued  till 
the  death  of  Boniface.  Clement  V  was  elected  through  the 
active  efforts  of  Philip  after  the  brief  term  of  Benedict  XI, 
and  rewarded  the  French  king  for  his  aid.  He  established  his 
residence  at  Avignon,  where  the  Holy  See  was  maintained  for 
the  next  thirty  years,  largely  under  the  domination  of  the 
French  kings.  Philip  also  attacked  the  order  of  Knights 
Templar,  caused  the  persecution  and  burning  of  their  grand 
master  and  many  leading  men  of  the  order,  and  confiscated 
their  treasures.  Under  his  reign  the  kingly  power  was  much 
increased  at  the  expense  of  the  pope,  the  orders  and  the  feudal 
lords.  In  13 15  Louis  the  Quarreler  issued  the  following  edict : 
"Whereas,  according  to  natural  right,  every  one  should  be 
born  free,  and  whereas,  by  certain  customs  which  from  long 
age  have  been  introduced  into  and  preserved  to  this  day  in  our 
kingdom,  many  persons  amongst  our  common  people  have 
fallen  into  bonds  of  slavery,  which  much  displeaseth  us,  we 
considering  that  our  kingdom  is  called  and  named  the  kingdom 
of  the  Free  {Franks),  and  willing  that  the  matter  should 
accord  in  verity  with  the  name,  .  .  .  have  by  our  grand  coun- 
cil decreed  and  do  decree  that  generally  throughout  our  whole 
kingdom,  such  serfdom  be  reduced  to  freedom  on  fair  and 
suitable  conditions,  .  .  .  and  we  will  likewise  that  all  other 
lords  who  have  bodymen  (or  serfs)  do  take  example  by  us  to 
bring  them  to  freedom." 

ft  will  be  noted  that  this  ap])lie(l  only  to  the  serfs  of  the 
crown  and  did  not  have  the  effect  of  liberating  those  held 
by  other  feudal  lords.  On  his  death  he  left  only  daughters.  A 
posthumous  son  lived  only  five  days.  His  l)r()thcr  Philip  the 
Long  then  convened  a  parliament,  at  which  it  was  settled  and 
ever  after  remained  the  law.  that  "the  laws  and  customs  in- 
violably (jbserved  amcjug  the  Franks  excluded  daughters  fn^ni 


592  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  crown."     This  rule  exckided  the  clamis  of  Edward  III  of 
England,  which  were  derived  from  his  mother. 

The  develupmeni  of  the  towns  of  France  and  the  influence 
exerted  by  them  on  the  governmental  affairs  dift'ers  in  some 
respects  from  that  of  other  countries.     No  town  at  any  time 
prior  to  the  revolution  of  1789  occupied  a  commanding  posi- 
tion as  a  municipality.     During  the  worst  period  of  feudal 
anarchy  the  knights  and  their  retainers  were,  to  a  great  ex- 
tent, robbers  and  non-producers.     Such  industries  as  their  im- 
mediate ifoUowers  pursued  were  mainly  connected  with  the 
land.      Throughout   France,   and   especially    in   the   southern 
provinces,  considerable  towns  survived  the  inundations  of  the 
barbarians  and  preserved  some  of  the  ancient  Roman  forms 
of  municipal  government.    When  the  bond  which  tied  Charle- 
magne's great  empire  together  became  so  weak  that  the  king 
looked  only  to  his  feudal  vassals  for  the  government  of  their 
territories  in  accordance  with  feudal  customs,  it  appeared  that 
these  were  not  adapted  to  the  needs  of  manufacturers  and 
traders.     On  the  contrary  the  feudal  baron,  who  did  not  work 
and  who  made  war  his  business,  became  a  robber  of  the  more 
industrious  townspeople.    His  extortions  were  either  by  peace- 
able exactions  in  some  form  of  taxation  or  by  forcible  taking 
of  property  by  himself  or  his  retainers.     In  a  large  number  of 
the  principal  towns  the  governing  power  was  in  the  hands  of 
bishops  or  other  church  officials,  who  ruled  often  in  a  manner 
similar  to  that  of  the  lay  nobility.    The  wrongs  suft"ered  by  the 
town  folks  at  the  hands  of  their  local  rulers  led  to  concert  of 
action  on  the  part  of  the  burghers  for  self -protection  and  to 
conflicts  with  the  local  barons.     The  outcome  of  these  con- 
flicts was  some  sort  of  an  agreement  as  to  the  terms  on  which 
the  burghers  might  live,  and  many  of  these  agreements  took 
the  form  of  charters  granted  by  the  lord  or  bishop,  and  some 
of  them  were  submitted  to  and  approved  by  the  king.     They 
related  solely  to  local  affairs,  and  no  general  combination  of 
the  scattered  towais  for  their  common  protection  was  effected, 
which  could   at  any  time  be  called  national.      Some  of  the 
southern  towns  united  for  mutual  protection,  and  the  Flemish' 
towns  formed  real  republican  leagues,  but  the  towns  in  the 
interior  struggled  on  separately.     Such  rights  of  local  govern- 


FRANCE  593 

ment  as  they  gained  were  assured  only  by  their  written  char- 
ters, and  observed  or  not  at  the  pleasure  or  according  to  the 
moral  character  of  the  lord.  For  violation  of  their  rights  the 
only  appeal  against  their  oppressors  was  to  the  king.  Such' 
appeals  were  often  made,  but  the  relief  obtained  depended  on 
the  character  of  the  king.  The  townsmen  looked  mainly  to 
peaceful  industry  for  their  livelihood,  while  the  knights  de- 
spised all  useful  employments  and  made  war  and  destruction 
their  chief  business.  A  natural  law  of  the  utmost  importance, 
but  often  overlooked,  gave  increase  of  numbers  and  of  wealth 
to  the  peaceful  and  industrious  burghers.  They  were  often 
plundered  and  many  of  them  killed  by  the  warlike  barons  and 
their  retainers.  They  were  themselves  often  contentious,  tur- 
bulent and  bloody,  yet  their  general  purpose  was  to  labor  and 
produce  useful  things.  Theirs  was  a  purpose  superior  morally 
and  economically  to  that  of  the  feudal  aristocracy,  and  it 
brought  to  them  the  reward  of  increased  numbers  and  im- 
portance. In  process  of  time  the  kings  found  that  the  burgh- 
ers could  supply  them  with  money  and  even  with  fighting"  men, 
and  the  strife  and  jealousy  between  the  feudal  lords  and  the 
burghers  made  it  ix)ssible  for  the  king  by  uniting  with  the 
burghers  to  maintain  his  authority  and  increase  his  power  over 
both.  At  first  the  charters  of  the  communes  gave  them  power 
only  to  regulate  their  local  affairs  by  their  own  ofificers  separ- 
ately and  in  their  own  way,  but  under  St.  Louis  and  Philip 
Ic  Bel  general  regulations  applicable  to  all  the  communes  were 
prescribed.  Following  this  came  a  recognition  of  the  right  of 
the  towns  through  their  representatives  to  be  consulted  in 
matters  affecting  the  general  welfare  of  the  kingdom,  and  in 
1 302-1 308  and  1 3 14  Philip  le  Bel  convoked  the  States-General 
and  summoned  thereto  "the  deputies  of  the  good  towns."  In 
1338  the  states  obtained  from  Philip  of  Valois  assent  to  the 
declaration,  that  "there  should  be  no  power  to  impose  or  levy 
talliage  in  France,  if  urgent  necessity  did  not  require  it.  and 
then  only  by  grant  of  the  people  of  the  estates." 

Thenceforth  there  was  a  connection  between  the  towns  and 
the  central  authority  by  representation  in  the  States-General . 
when  convened,  and  by  the  direct  exercise  of  the  king's  author- 
ity in  the  government  c)f  the  towns,  but  there  was  no  clear 


594  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

recognition  of  the  rights  of  the  burghers  nor  dclinitc  check  on 
the  tyranny  of  either  king  or  feudal  lord.  By  the  close  of  the 
thirteenth  century  the  feudal  system  had,  as  its  natural  pro- 
ducts, sprinkled  the  country  over  with  lords'  castles  with  heavy 
walls  and  moats  to  resist  attacks,  and  walled  towns.  Feudal 
wars  and  the  lack  of  any  general  authority  capable  of  afford- 
ing protection  to  the  weak  made  it  necessary  for  the  burghers 
to  defend  their  towns  and  the  knights  their  castles.  In  1329 
Edward  III  of  England,  being  thereto  summoned,  paid  hom- 
age to  Philip  of  Valois,  as  king  of  Erance,  for  the  duchy  of 
Aquitaine,  but  in  1337  Edward  himself  laid  claim,  though 
without  any  very  plausible  ground,  to  the  crown  of  Erance, 
and  commenced  what  is  sometimes  called  the  hundred  years' 
war.  It  was  cruel  and  destructive  and  unproductive  of  benefit 
to  either  combatant.  Edward  courted  the  aid  of  the  Elemish 
towns  and  alliances  with  disaffected  nobles,  from  some  of 
whom  he  claimed  and  received  homage  as  king  of  Erance. 
Opposing  claims  of  different  vassals  to  the  duchy  of  Brittany 
led  to  the  king  of  Erance  supixjrting  one  and  the  king  of  Eng- 
land another,  and,  though  a  truce  had  been  agreed  on  between 
the  two  kings,  they  fought  in  Brittany  for  their  vassals, 
though  still  claiming  to  observe  the  truce.  This  was  spoken 
of  as  the  war  of  the  three  Joans,  owing  to  the  leading  parts 
taken  by  wives  of  the  claimants  to  the  dukedom,  and  exhibited 
the  mixture  of  fierceness  and  barbarity  with  occasional  bursts 
of  generosity  and  virtue  so  characteristic  of  feudal  society. 
Erom  1347  to  1349  the  "black  death"  took  off  a  great  ])art  of 
the  population.  In  the  early  period  of  the  hundred  years'  war 
the  English  gained  advantages.  At  Crecy  the  Erench  were 
defeated  and  again  at  Poitiers,  where  on  Sept.  19,  1356,  John  II 
of  Erance  and  his  young  son  Philip  were  taken  prisoners  by 
the  English  under  the  prince  of  Wales.  They  were  treated  as 
distinguished  guests,  though  the  arbitrary  execution  of  prison- 
ers or  obnoxious  subjects  was  a  frequent  occurrence  under 
both  sovereigns.  Before  this  unfortunate  battle,  in  T35S.  John 
had  found  it  necessary  to  convoke  the  Statcs-rieneral,  from 
which  he  received  liberal  grants  of  supplies  and  the  lew  of 
new  forms  of  taxes  that  occasioned  great  discontent.  After 
the  battle  of  Poitiers  lohn's  eldest  son  Charles  assumed  the 


FRANCE  595 

direction  of  affairs  under  the  title  of  lieutenant  of  the  king  and 
summoned  the  States-General  to  meet  at  Paris  on  Oct.  15. 
The  clergy  appeared  in  full  force  and  about  one  hundred  dep  i- 
ties  from  the  towns,  but  so  many  of  the  nobility  had  fallen  in 
the  battle  that  the  representation  of  that  order  was  very  light. 
Each  order  at  first  held  separate  sessions,  but  they  soon  chose 
commissioners  from  each  to  sit  together.  These  numbered 
eighty  in  all.  Charles,  who  is  styled  the  Dauphin,  appointed 
some  of  his  officers  to  be  present  at  their  meetings,  but  they 
refused  to  proceed  in  their  presence  and  the  officers  thereupon 
withdrew.  After  a  few  days  they  made  their  demands  on 
Charles  "that  he  should  deprive  of  their  offices  such  of  the 
king's  councillors  as  they  should  point  out,  have  them  arrested, 
and  confiscate  all  their  property."  Twenty-two  men,  including 
the  chancellor,  president  of  parliament,  king's  steward  and 
some  officers  of  his  household,  w^ere  named.  They  also  de- 
manded that  deputies  called  reformers  should  traverse  the 
provinces  as  a  check  on  the  royal  officials,  and  that  twenty- 
eight  delegates  chosen  from  the  three  orders,  ifour  prelates, 
twelve  knights  and  twelve  burgesses  should  be  constantly 
I)lace(l  near  the  king's  person  "with  power  to  do  and  order 
everything  in  the  kingdom  just  like  the  king  himself,  as  well 
for  the  purpose  of  appointing  and  removing  public  officers  as 
for  other  matters."  The  Dauphin  asked  time  to  consider  and 
left  Paris  for  Metz.  During  his  absence  the  poj)ulace  of  Paris 
under  the  lead  of  Stephen  Marcial  became  exasperated  at  an 
order  for  the  debasement  of  the  coin  and  compelled  its  sus- 
pension till  the  Dauphin's  return,  when  they  again  rose  and 
forced  him  to  accede  to  the  principal  demands  made  by  the 
States-General,  and  they  were  authorized  to  meet  when  they 
pleased.  At  a  subsequent  session  of  the  States-General  in 
March,  1357,  a  grand  ordinance  in  sixty-one  articles,  enumer- 
ating the  grievances  complained  of  and  prescribing  redress  for 
them,  was  drawn  up,  and  a  grand  commission  o,f  thirty-six 
wns  appointed  to  meet  together  at  Paris  for  ordering  the  af- 
fairs of  the  kingilom.  whose  orders  all  classes  nnist  obey.  A 
period  of  turbulence  followed,  during  which  the  poj)ulacc  of 
Paris  took  a  leading  part  in  public  affairs.  Tn  I'Y'bruary.  1358, 
under  the  lead  of  Marcial  they  entered  the  palace  and  killed  the 


596  EVOLUTION  OF  GOVERNMENTS  AND  LuA.WS 

marshals  of  Champagne  and  Normandy  in  the  presence  of  the 
Dauphin.  Marcial  soon  became  dictator  at  Paris,  and  the 
Dauphin  escaped  to  Senhs.  He  soon  after  convoked  the 
States-General  to  meet  at  Compiegne.  In  response  to  his  call 
the  nobles  and  partisans  of  the  murdered  marshals  turned  out 
and  demanded  the  execution  of  the  murderers.  While  matters 
stood  in  this  attitude  there  was  an  uprising  of  the  peasants  in 
Normandy  and  other  provinces.  They  took  and  demolished 
many  castles  and  killed  many  noblemen  and  their  families. 
Marcial  sent  out  a  body  of  three  hundred  burghers  to  aid  in 
taking  the  castle  of  Ermenonville,  which  was  demolished  and 
all  the  nobility  in  it  put  to  death.  The  nobility  under  the  lead 
of  the  Dauphin  soon  made  common  cause  against  the  peasants, 
who  were  overcome  and  great  numbers  of  them  massacred. 
Marcial,  as  a  last  desperate  expedient  to  save  himself,  called 
in  the  aid  of  the  English  and  admitted  a  body  of  them  into  the 
city,  but  a  quarrel  broke  out  between  them  and  the  Parisians, 
in  which  a  number  of  the  English  were  killed.  On  Jwly  31, 
1358,  while  attempting  to  open  the  gates  of  the  city  to  admit 
the  king  of  Navarre  and  the  English,  Marcial  was  killed  by  the 
Parisians.  The  crude  attempt  of  Marcial  and  his  coadjutators 
to  curb  the  tyranny  of  the  king  and  nobility  served  only  to 
show  the  lack  of  capacity  for  organization  and  concerted  ac- 
tion on  the  part  of  the  burghers  and  peasants.  They  were 
utterly  wanting  in  regard  for  the  rights  of  others  and  that 
self-restraint  which  is  so  essential  to  popular  government. 
The  authority  of  kings  and  feudal  despots  may  be  supported 
and  maintained  over  an  ignorant  and  debased  multitude  mere- 
ly by  armed  force  and  regardless  of  mercy  or  justice,  but, 
as  Montesquieu  ably  points  out.  popular  government  can  only 
rest  securely  on  justice  to  each  and  to  all.  Marcial  and  Callet, 
the  leader  of  the  peasants,  started  out  in  a  just  cause,  but  soon 
adopted  the  methods  of  the  authors  of  the  wrongs  of  which 
the  people  complained.  If  they  could  have  restrained  their 
own  passions  and  those  of  their  followers,  they  might  have 
accomplished  great  good,  but  the  people  of  that  age  were  not 
prepared  for  popular  government.  After  Marcial's  death,  on 
the  return  of  the  Dauphin,  the  popular  leaders  were  taken  and 
summarily  executed. 


FRANCE  597 

In  the  fall  of  1359  Edward  invaded  France.  After  roaming 
about  and  pillaging  the  open  country  without  laying  seige  to 
any  of  the  strong  towns  he  concluded  the  treaty  Bretigny, 
May  1360,  with  the  Dauphin,  by  which  Aquitaine  with  en- 
larged boundaries  was  acknowledged  as  an  English  province 
freed  from  French  sovereignty,  and  a  ransom  of  3,000,000 
crowns  was  to  be  paid  for  King  John's  release.  War  over  the 
succession  to  the  throne  of  Castile  was  participated  in  by  the 
French  on  one  side  and  the  English  on  the  other,  and  in  1369 
war  was  again  declared  by  Charles  V  of  France,  which  result- 
ed in  the  recovery  by  the  French  of  most  of  the  territory  ceded 
by  the  treaty  of  Bretigny  without  any  decisive  battles. 
Charles  V  died  in  1380  and  was  succeeded  by  his  son  Charles 
VI  then  only  twelve  years  old.  In  his  reign  civil  discord  as 
well  as  foreign  war  harassed  and  impoverished  the  country. 
The  Burgundian  and  Orleans  factions,  with  the  foreign  and 
domestic  alliances  peculiar  to  that  age,  kept  up  constant  strife. 
The  Flemish  cities,  in  spite  of  their  wars,  grew  and  preserved 
much  of  their  local  freedom.  In  141 5  the  famous  battle  of 
Azincourt  was  fought,  in  which  the  French  sustained  a  crush- 
ing defeat  and  the  loss  of  a  great  host  of  the  nobility.  The 
invention  of  gunpowder  and  changes  in  the  military  system, 
from  the  armored  knights  fighting  on  horseback  without  order 
of  discipline,  all  serving  for  limited  periods  without  pay  in 
accordance  with  feudal  law,  was  gradually  changing  into  a 
more  orderly  system  of  paid  and  systematically  organized 
troops.  Gunpowder  deprived  the  armored  knight  of  most  of 
his  superiority  over  the  unprotected  and  poorly  armed  foot 
soldier.  The  war  between  English  and  French  dragged  on 
under  Charles  VII,  a  very  weak  prince.  The  Burgundians 
aided  the  English.  French  fortunes  reached  a  very  low  ebb 
till  during  the  siege  of  Orleans  by  the  English  Joan  of  Arc 
appeared  and  with  a  magnetic  force  unique  in  history  roused 
the  spirit  of  the  French  and  led  them  to  victory.  Though 
Edward  III  might  treat  a  worthless  prince  like  King  John, 
while  a  prisoner,  with  such  marked  consideration  as  to  make 
him  really  enjoy  his  captivity,  when  the  pure-minded  and  loftv 
souled  Joan  fell  into  his  hands,  they  burnt  her  as  a  witch  and 


598  EVOLUTION  OF  GOVtRNMENTS  AND  LAWS 

heretic  in  1431.  With  the  withch-awal  of  the  Burgundians 
from  the  English  side  the  fortunes  of  the  latter  declined,  and 
they  were  forced  to  withdraw  from  the  interior.  The  long- 
period  of  internal  discord  and  English  dominion  in  Erance 
drew  toward  its  close.  In  1439  the  States-General  were  con- 
vened by  Charles  VTl,  and  a  start  was  made  toward  the  organ- 
ization of  a  standing  army  and  a  regular  system  of  taxation 
for  its  support.  This  aroused  the  hostility  of  the  nobles,  but 
Charles  persisted  and  organized  fifteen  companies  of  one  hun- 
dred lancers  each,  which  he  set  to  work  clearing  the  country 
of  the  robbers  with  which  it  was  infested.  In  1453  the  Eng- 
lish were  driven  from  all  their  possessions  except  Calais, 
Havre  and  Guines  Castle.  The  long  struggle  had  tended  to 
develop  a  national  sentiment  in  France,  and  all  the  brilliant 
campaigns  of  the  English  were  barren  of  profit. 

After  the  close  of  the  reign  of  Louis  XI  France  entered  on 
a  career  of  contests  and  diplomacy  with  foreign  states,  with 
the  details  of  which  we  are  not  concerned.  Although  the 
administrative  system  had  not  reached  its  full  development, 
the  structure  of  the  French  monarchy  was  already  settled. 
The  king  was  the  state,  and  his  authority  was  backed  by  mili- 
tary power.  Under  Charles  VIII  began  those  Italian  wars, 
based  on  a  claim  to  Naples  and  Sicily,  which  were  productive 
of  so  much  bloodshed  a;id  so  little  advantage.  From  this  time 
forward  the  field  of  military  operations  widens  and  France 
plays  a  leading  part  among  the  nations  of  Europe.  The  dis- 
tinct progress  accomplished  was  the  formation  of  a  compact 
state,  developing'  an  orderly  though  not  a  just  system  of  in- 
tercourse with  and  knowledge  of  the  other  states  of  Europe, 
under  which  industry  increased  and  knowledge  was  sought. 
Not  to  a  changing  form  or  theory  of  government  during  this 
period,  but  to  other  causes,  must  we  look  for  the  signs  of  prog- 
ress and  the  growth  of  those  sentiments  of  liberty  and  equality 
which  blazed  forth  in  the  eighteenth  century.  The  feudal  sys- 
tem was  the  rule  of  local  petty  tyrants,  who  had  no  respect  for. 
nor  sympathy  with,  any  class  of  laboring  or  trading  people. 
The  stratification  of  society  was  into  the  various  feudal  orders, 
with  the  serfs  at  the  base  and  the  king  at  the  head,  a  ruler 


FRANCE  ,  599 

whom  his  greatest  subjects  detied,  and  the  churchmen  pro- 
fessing brotherhood,  but  rigorously  ruled  by  church  officials. 
The  enterprises  carried  on  by  feiidal  barons  led  to  no  discus- 
sion of  the  principles  of  social  organization.  The  establish- 
ment of  the  power  of  the  king  on  a  more  lirm  basis  and  the 
opening  of  the  era  of  wars  between  great  states  had  taken 
place  by  the  reign  of  Francis  I,  1524  to  1547.  Then  came 
that  revolution  which  affected  Europe  and  especially  France  so 
profoundly,  the  religious  reformation.  For  centuries  the  Pope 
and  catholic  clergy  had  enjoyed  not  merely  the  distinction  of 
rank  in  the  religious  world,  but  great  temporal  power  and  vast 
revenues.  Fondness  of  display  and  love  of  power  had  become 
quite  as  characteristic  of  the  popes  and  prelates  as  of  the 
temporal  sovereigns.  The  creed  was  tenaciously  clung  to,  but 
the  moral  teachings  of  Christ  were  often  forgotten.  The  sale 
of  indulgences  to  do  wrong  shocked  the  moral  sense  of  great 
numbers,  in  an  age  when  great  crimes  were  common.  The 
state  of  society  in  France  in  the  sixteenth  century  was  pecu- 
liar. The  government  was  in  a  stage  of  transition  from  the 
anarchy  of  feudalism  to  a  kingly  despotism.  The  law  was  a, 
mixture  of  the  Salic  law  of  the  Franks,  the  feudal  principles 
and  the  Roman  civil  law.  Religion  was  no  longer  the  ritual  of 
the  church,  but  a "  faith  for  which  men  and  women  unhesi- 
tatingly gave  up  all  earthly  possessions  and  even  life  itself. 
Contemporaneously  with  the  opening  of  the  new  world  to 
view  and  the  discovery  of  a  water  route  to  India  and  the 
east,  there  was  an  awakening  to  new  conceptions  of  all  things. 
The  desire  to  discover  new  truths,  to  look  deeper  into  nature 
and  know  more  of  man  and  of  the  moral  obligations  resting 
on  him,  was  growing.  This  desire  prompted  inquiry,  which 
at  the  same  time  produced  turmoil  and  advancement.  Though 
without  any  system  of  public  schools  for  the  multitude,  France 
then  occupied  a  leading  position  in  its  educational  institu- 
tions. The  great  University  of  Paris,  which  had  its  begin- 
nings in  the  twelfth  century,  had  developed  into  a  large 
institution,  where  many  branches  of  learning  were  taught. 
Other  universities  had  also  been  established  at  Montpelier. 
Toulouse,  Orleans.   Angers.  Avignon.   Cahors  and  Grenoble, 


Goo  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

some  of  which  were  in  a  flourishing  condition.  The  civil  law, 
medicine  and  religion  were  taught.  From  all  these  schools 
some  light  was  ditfused  through  the  intellectual  darkness,  and 
most  important  of  all,  a  growing  appetite  for  truth  and  an 
increasing  perception  of  the  vices  and  immoralities  of  the  age. 
The  printing  press  had  come  to  give  its  powerful  aid  in 
spreading  information.  While  the  high  clergy  were  often 
intent  only  on  their  own  personal  aggrandizement,  there  were 
many  students  who  in  reading  the  Scriptures  discovered,  not 
merely  the  alluring  promise  of  bliss  in  a  life  to  come,  but  also 
the  jiractical  lessons  of  morality  and  the  sublime  virtue  of 
the  golden  rule  as  a  means  of  improving  man's  condition  here 
on  earth.  The  sixteenth  century  exhibits,  often  in  the  same 
individual  as  well  as  in  the  contentions  of  parties  and  factions, 
the  struggle  between  the  old  savagery  and  barbarism  in  their 
most  vicious  forms,  and  conscience  newly  awakened  to  the 
command  to  love  your  enemies.  The  religious  struggle  in 
France  was  not  between  different  states  or  sections  of  the 
country,  but  between  neighbors.  Men  either  followed  the 
path  of  the  reformation  or  adhered  to  the  dogmas  and  the 
mastery  of  the  established  church,  according  to  their  mental 
bias  and  surrounding  influences.  It  is  difficult  in  this  age  to 
comi)rehend  the  feelings  of  Protestants  and'  Catholics  in  those 
times.  Protestants  were  appalled  at  the  immoralities  of  the 
church  and  believed  that  nothing  but  eternal  damnation  could 
be  meted  out  to  those,  who  under  the  guise  of  religion  were 
guilty  of  so  many  misdeeds.  Catholics  felt  that  Protestants 
were  seeking  to  tear  down  that  church  to  which  they  looked 
for  protection  and  safe  passage  into  a  life  of  bliss  to  come. 
Generation  after  generation  had  lived  and  died  in  blissful 
confidence  in  the  ability  of  the  priest  to  pass  the  dying  soul 
safely  through  purgatory  into  heaven,  and  the  l)elief  that 
without  the  aid  of  the  church  man  was  without  hope.  Deadly 
strife  always  develops  hardness  and  cruelty,  but  religious 
wars  and  persecutions  are  always  more  cruel  and  unrelenting 
than  others. 

During  the  reign  of  Francis  I  there  were  eighty-one  exe- 
cutions  for  heresy  in   accordance  with   judicial   decrees.      In 


FRANCE  6oi 

1545  a  great  number  of  Vaudians,  estimated  at  3,000,  were 
ruthlessly  massacred  because  of  their  religious  opinions. 
During  the  twelve  years  reign  of  Henry  II  there  were  ninety- 
seven  convictions  and  executions  for  heresy.  Though  in  some 
cases  the  proceedings  were  very  summary  and  execution  fol- 
lowed arrest  quickly,  in  most  the  pro(!eedings  were  deliberate, 
and  it  cannot  be  doubted  that  many  people  believed  that 
heresy  was  a  crime  meriting  death.  The  study  of  the  law 
had  made  such  progress  that  the  lawyers  were  already  an  im- 
portant factor  in  the  state.  The  highest  court  was  the  parlia- 
ment of  Paris,  which  not  only  exercised  judicial  functions, 
but  was  the  medium  through  which  all  edicts  of  the  King  or 
Pope  having  the  effect  of  laws  were  registered.  Parliament 
itself  was  not  a  law-making  power,  but  it  sometimes  inter- 
posed obstacles  to  obnoxious  enactments  by  refusing  to  regis- 
ter them.  The  kings  overcame  the  difficulty  by  causing  regis- 
tration to  be  made  without  the  sanction  of  Parliament,  but 
when  in  1557  the  papal  bull  was  issued  establishing  the  Inqui- 
sition in  France,  the  Parliament  refused  to  register  it.  In 
1559  this  Parliament  was  composed  of  one  hundred  and  thirty 
members,  and  in  1602,  when  Biron  was  condemned,  one  hun- 
dred and  twenty-seven  voted  for  the  conviction.  The  religious 
struggle  attained  its  most  fierce  manifestation  in  the  Massacre 
of  St.  Bartholomew's  Eve  on  Aug.  4,  1572,  when  the  Protes- 
tants in  great  numbers  were  butchered  by  the  order  of  Charles 
IX.  The  number  is  variously  estimated  from  10,000  to  100.- 
000.  It  was  the  purpose  of  Charles  to  exterminate  the 
Huguenots  at  one  stroke  and  thus  end  the  religious  strife,  but 
in  this  he  signally  failed.  The  moral  sense  of  the  Catholics 
was  violently  shocked,  and  all  Christendom  condemned  in 
unmeasured  terms  the  bloody  butchery.  The  religious  strug- 
gle continued  throughout  the  reign  of  Charles  IX,  which  ended 
with  his  death  in  1574,  ynd  of  his  successor  Henry  III,  1574 
to  1589.  To  the  influence  of  Catharine  de  Medici,  the  Italian 
queen  mother,  was  charged  many  of  the  evils  with  which  the 
state  was  afflicted.  In  1575  the  Holy  League,  which  had  been 
first  conceived  in  1562,  came  into  prominence,  and  on  the 
other  side  the  Protestants  were  not  wantinc:  in  numbers  or 


6o2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

leadership.  At  Paris  the  Cathohc  League  partitioned  the  city 
into  five  districts  with  a  head  man  for  each,  who  soon  added 
to  their  number  eleven  others.  This  formed  the  committee  of 
sixteen,  which  played  an  important  part  in  the  religious  war. 
In  1588,  when  Henry  III  undertook  to  garrison  the  city,  this 
committee,  under  the  leadership  of  the  Duke  of  Guise  and 
backed  by  the  populace,  barricaded  the  streets  of  Paris  and 
caused  the  king  to  seek  safety  in  flight.  On  Oct.  6,  1588,  the 
States-General,  composed  of  one  hundred  and  eighty  nobles, 
one  hundred  and  thirty-four  clergymen  and  one  hundred  and 
ninety-one  members  of  the  third  estate,  were  convoked  at 
Blois.  Nothing  of  importance  was  accomplished  by  the  ses- 
sion, which  ended  Jan.  10,  1589.  The  King  caused  the  Duke 
of  Guise  to  be  murdered,  but  the  death  of  the  leader  did  not 
destroy  the  League.  The  Parliament  of  Paris  sided  with  the 
Leaguers,  and  the  parliaments  of  other  chief  cities  did  like- 
wise. The  Duke  of  Mayenne,  who  succeeded  to  the  Catholic 
leadership,  organized  a  council  general  of  the  League,  com- 
posed of  forty  members,  for  the  general  direction  of  its 
affairs.  The  struggle  between  Catholic  and  Protestant  was 
popular  in  character  and  not  merely  the  quarrel  of  leaders. 
The  league  had  its  committee  and  was  backed  by  the  populace 
at  Paris.  The  Protestants  on  the  other  hand  were  asserting 
their  right  to  religious  liberty,  and  in  doing  so  were  forced  to 
deny  the  temporal  power  of  the  king  when  exerted  to  compel 
submission  to  the  established  form  of  worship.  It  was  an 
assertion  of  individual  liberty,  though  without  a  clear  con- 
ception of  the  significance  of  the  claim. 

The  assassination  of  Henry  III  by  a  fanatical  monk  made 
Henry  of  Navarre,  a  Protestant,  heir  to  the  throne.  The 
Catholics  were  still  largely  in  the  majority  and  Henry,  who 
had  been  the  recognized  head  of  the  Protestants,  had  a  diffi- 
cult task  before  him;  but  with  the  force  of  the  sentiment  of 
loyalty  to  the  legitimate  heir  to  the  throne  and  a  wise  policy 
of  toleration  of  religious  differences,  he  accomplished  good 
for  the  state  and  the  substantial  restoration  of  domestic  peace. 
His  principle  of  toleration  was  a  principle  of  liberty  of  con- 
science,   religious    thought    and    expression.      The    edict    of 


FRANCE  603 

Nantes,  which  he  pubhshed  on  April  13,  1598,  was  a  great 
stride  forward,  though  it  did  not  accord  entire  equahty  or 
freedom  in  rehgion.  By  it  the  Protestant  form  of  worship  in 
the  castles  of  the  lords  high  justiciar}^  w^ho  numbered  3,500, 
was  allowed,  and  also  in  the  castles  of  simple  noblemen,  pro- 
vided the  number  present  did  not  exceed  thirty.  The  state 
was  charged  with  a  provision  of  165,000  livres  for  salaries 
of  Protestant  ministers,  and  donations  and  legacies  for  their 
support  were  permitted.  The  children  of  Protestants  were 
admitted  to  the  schools  and  universities.  The  Parliament  be- 
ing intensely  Catholic  there  was  great  difficulty  in  obtaining 
justice  by  the  Protestants,  and  a  special  court,  called  the  edict 
chamber,  was  established  for  the  trial  of  causes  in  which  they 
were  interested.  Catholic  judges  could  not  sit  in  this  court, 
except  with  the  consent  of  the  parties.  In  the  Parliaments  of 
Bordeaux,  Toulouse  and  Grenoble,  the  edict  chambers  were 
composed  of  two  presidents,  one  Catholic  and  one  Protestant, 
and  twelve  councillors  equally  divided.  The  Protestants  re- 
tained control  of  the  towns  then  in  their  possession,  number- 
ing great  and  small  about  two  hundred,  and  their  garrisons 
and  fortifications  were  maintained  at  the  public  charge.  After 
his  accession  to  the  throne  Henry  found  it  easier  to  rule  as  a 
Catholic  than  as  a  Protestant,  and  in  1593  became  a  Catholic 
and  was  received  into  the  Church.  He  issued  this  edict  as  a 
Catholic  monarch  for  the  pacification  of  his  kingdom,  and  as 
a  measure  of  justice  to  his  subjects.  Henry  is  also,  credited 
with  a  comprehensive  plan  for  the  pacification  of  all  Europe 
by  confederating  all  the  Christian  states,  Catholic  Lutheran 
and  Calvinist.  with  equal  rights.  The  plan  contemplated  in- 
dependence in  local  affairs,  the  care  for  common  interests 
through  central  authority  and  the  pacific  settlement  of  all  dis- 
putes between  states.  The  recent  Hague  conferences  are 
steps  toward  the  realization  of  a  world  wide  union  of  this 
kind.  The  barbarism  of  a  division  of  the  continent  into  so 
many  hostile  camps  must  some  day  be  generally  recognized, 
the  simple  remedy  of  efficient  cooperation  and  combination  for 
the  general  good  be  adopted,  and  all  the  vast  armies  which 
now  sap  the  life  of  each  nation  and  periodically  spread  death. 


6o4  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

destruction  and  misery  over  the  land,  be  disbanded  to  aid  in 
promoting  the  general  welfare.  The  curse  of  militarism  may 
be  removed  merely  by  the  extension  to  national  disputes  of  the 
principle  of  the  decision  of  controversies  by  reason  and  the 
judgment  of  disinterested  men,  as  controversies  between  in- 
dividuals and  subdivisions  of  a  state  are  now  settled.  In 
Henry's  foreign  policy  the  principle  of  religious  toleration 
played  an  important  part.  To  check  the  power  of  Austria  he 
allied  Catholic  France  with  Protestant  Germany  and  England 
against  Spain  and  Austria.  Under  his  rule  there  was  a  grow- 
ing respect  for  law  as  well  as  an  increased  measure  of  liberty. 
When  he  became  convinced  that  Biron,  who  had  long  been  a 
favorite  with  him,  plotted  against  his  authority,  instead  of 
directing  his  execution  arbitrarily,  as  Charles  IX  had  com- 
manded that  of  Coligny  and  the  Huguenots  and  Henry  III 
that  of  the  Duke  of  Guise,  he  caused  him  to  be  publicly  tried. 
The  inquiry  lasted  three  weeks,  and  the  one  hundred  and 
twenty-seven  judges  in  the  Parliament  of  Paris  unanimously 
condemned  him.  Doubtless  the  accused  stood  at  great  disad- 
vantage in  a  trial  with  the  king  as  accuser,  and  the  tribunal 
could  hardly  be  called  an  impartial  one,  but  strict  impartiality, 
absolute  freedom  from  all  bias,  is  hardly  to  be  found,  unless 
the  matter  tried  is  of  utter  indifference  to  the  judge.  It  is 
greatly  to  be  regretted  that  in  his  private  morals  Henry  was 
conspicuous  for  weakness  rather  than  strength  of  character, 
yet  in  spite  of  this  blemish  he  stands  out  as  a  truly  great 
public  character,  who  labored  earnestly  and  successfully  to 
protect  the  public  good,  not  only  of  his  own  kingdom  but  of 
all  Europe.  During  the  regency  of  Marie  de  Medici,  widow 
of  Henry  IV,  and  the  reign  of  Louis  XIII,  Richelieu  pro- 
moted the  system  of  absolutism,  which  attained  its  highest 
stage  under  Louis  XIV.  The  power  of  the  feudal  lords  had 
been  waning  for  more  than  a  century.  Under  the  ministry  of 
Richelieu  all  eyes  became  steadily  fixed  on  the  king  as  the 
fountain  of  all  power  in  the  state,  and  the  ambitious  nobles 
were  taught  to  seek  advancement  through  the  favor  of  the 
king,  rather  than  the  power  of  their  armed  retainers.  Though 
Henry  IV  had  had  his  councillors,  no  ministry  with  a  distri- 


FRANCE  60s 

bution  of  well  defined  powers  and  functions  had  been  estab- 
lished. Nor  did  Richelieu  develop  such  a  system.  His  policy 
was  directed  toward  the  advancement  of  the  kingly  authority 
at  the  expense  of  the  nobility,  and  to  the  exercise  of  power 
through  officers  appointed  by  the  king  for  their  fidelity,  rather 
than  their  rank.  The  Parliaments,  of  which  at  the  accession 
of  Richelieu  to  power  there  were  nine,  namely,  of  Paris,  Toul- 
ouse, Grenoble,  Bordeaux,  Dijon,  Rouen,  Aix,  Rennes  and 
Pau  and  to  which  he  added  Metz,  at  times  manifested  some 
degree  of  independence  and  assumed  powers  to  regulate  tax- 
ation and  give  advice  to  the  king.  In  1641  Louis  XIII  pub- 
lished an  edict  prohibiting  the  Parliaments  from  interference 
in  affairs  of  administration  and  confining  them  strictly  to 
judicial  functions.  Though  there  were  refusals  to  register 
edicts  by  some  of  the  Parliaments,  opposition  was  crushed  and 
the  king's  unrestricted  power  enforced.  There  were,  besides 
the  states  general  of  the  whole  kingdom,  states  provincial  in 
Languedoc.  Brittany,  Burgundy,  Provence,  Dauphiny  and 
Pau,  through  which  these  districts  levied  the  taxes  on  them- 
selves. These  states  provincial  were  convoked  by  the  king 
and  varied  in  their  composition  according  to  the  district. 
Richelieu's  policy  was  to  curtail  the  power  of  the  states  and 
take  away  all  restriction  on  the  kings  control  oi  his  finances. 
He  established  in  each  province  overseers  of  justice,  police 
and  finance,  chosen  mostly  from  the  burgesses,  into  whose 
hands  the  whole  administration  of  local  afifairs  was  committed. 
By  an  edict  of  July  31,  1626,  all  the  old  castles  of  the  great 
nobles  were  demolished,  and  through  these  overseers  the 
powers  of  the  nobility  in  local  afifairs  were  effectuallv  cur- 
tailed. Only  twice  in  his  time  did  Richelieu  convoke  the 
Assembly  of  Notables,  in  1625  and  1626.  On  Feb.  24,  1627, 
the  last  Assembly  separated  and  was  never  again  convoked 
till  the  revolution  of  1789. 

On  the  death  of  Richelieu  another  cardinal,  Mazarin,  an 
Italian,  took  his  place  and,  though  he  encountered  intense 
hostility  and  much  internal  commotion  and  external  war,  he 
died  with  the  full  confidence  of  Louis  XIV  and  as  premier 
wielded  the  actual  power  of  the  king.     On  his  death  in  1661 


6o6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Louis  assumed  the  duties  of  his  office  and  notified  his  min- 
isters that  they  were  only  to  act  on  his  command.  In  his 
reign  was  commenced  the  systematic  distribution  of  admin- 
istrative functions,  with  a  secretary  ifor  foreign  affairs,  one 
for  war  and  the  army  and  another  for  finance.  Neither  of 
these  had  independent  authority,  but  all  worked  under  the 
king.  Louis  XIV  had  ideas  of  order  and  method  superior 
to  those  of  his  predecessors.  He  labored  to  gather  informa- 
tion and  to  direct  the  action  of  all  his  officers.  He  was  the 
sole  source  of  authority,  and  in  the  selection  of  his  agents  he 
sought  to  humble  rather  than  elevate  the  great  folks.  The 
nobles  however  still  held  title  to  the  land,  and  through  its 
ownership  were  able  to  grind  the  poor  to  starvation.  Louis 
with  the  aid  of  able  ministers  greatly  curtailed  the  diversion 
of  moneys  collected  as  taxes  into  private  pockets.  By  this 
means  his  revenues  were  increased  and  taxes  lightened.  The 
beginnings  of  the  actual  exercise  of  kingly  power  by  Louis 
contained  much  that  was  good.  He  did  much  to  develop  an 
orderly  government,  with  a  head  laboring  daily  :for  the  wel- 
fare of  the  state,  as  he  understood  it.  But  Louis  sought  first 
of  all  his  own  aggrandizement.  He  was  lavish  in  the  expendi- 
tures of  his  court,  but  he  built  palaces  and  public  works  that 
were  both  useful  and  ornamental.  Like  most  despots  how- 
ever, he  sought  to  extend  his  power  over  his  neighbors.  The 
Netherlands,  Germany,  Spain  and  Italy  were  subjected  to  his 
encroachments,  and  no  sooner  had  his  country  begun  to  feel 
the  advantages  of  his  firm  rule  than  he  plunged  it  into  war. 
The  early  period  was  one  of  glory  (so  called),  for  France. 
Her  boundaries  were  advanced,  and  she  took  her  place  as  the 
first  power  in  Europe.  But  however  great  the  successes  in 
battle  the  drain  of  men  and  money  in  great  wars  necessarily 
impoverishes  the  nation,  and  the  later  years  of  the  reign  of 
Louis  were  years  of  misery  among  the  people  and  disaster, 
defeat  and  loss  of  prestige  in  war.  Religious  toleration, 
established  by  the  edict  of  Nantes,  and  which  had  done  so 
much  to  pacify  France,  came  to  an  end  in  1685,  when  Louis 
revoked  the  edict  and  drove  out  the  Huguenots,  to  become 
either  soldiers  in  the  armies  of  his  enemies  or  industrious 


FRANCE  607 

workers,  furnishing  money  and  supplies  to  them.  The  long 
reign  of  Louis  was  one  of  thoroughly  recognized  right  of  the 
king  to  rule,  freed  from  all  dictation  and  interference  by  the 
aristocracy.  Obedience  to  him  was  considered  the  duty  of 
all.  The  plentitude  of  the  king's  power  and  his  love  of  dis- 
playing it  drew  to  his  court  all  the  rich  and  high  born  of 
the  kingdom.  The  magnificence  of  his  court  was  noted 
throughout  Europe.  Nowhere  else  was  there  such  an  exhi- 
bition of  wealth  and  luxury.  Internal  peace  was  the  marked 
evidence  of  advancing  views  of  social  duty.  Foreign  war  and 
military  glory  still  offered  the  most  alluring  field  for  the  am- 
bitious, yet  the  age  was  one  of  intellectual  awakening  and 
the  great  names  are  not  alone  of  soldiers,  but  of  authors, 
artists,  scientists  and  philosophers.  Though  nothing  like  at- 
tacks on  the  established  system  was  tolerated,  writers  and 
teachers  did  not  fail  to  discover  and  declare  some  of  the  moral 
truths  bearing  on  the  obligations  of  the  ruler  to  the  ruled. 
Priests  taught  virtue  a  little  more  and  persecuted  heresy  far 
less.  The  luxury  and  magnificence  of  the  court,  to  which  all 
the  great  landowners  gathered,  withdrew  from  their  estates 
whatever  advantage  might  have  resulted  in  their  management 
from  the  education  and  intelligence  of  the  owners,  and  left 
them  to  the  care  of  impoverished  peasants.  To  maintain 
great  houses  at  Paris  and  Versailles,  buy  the  gorgeous  and 
expensive  costumes  of  the  time  and  give  costly  banquets,  re- 
quired the  whole  product  of  the  estates.  The  peasants  who 
did  all  the  work  were  mercilessly  robbed  of  the  fruits  of  their 
toil,  in  order  that  the  butterflies  at  the  palace  might  appear  in 
dazzling  brilliancy.  Order,  obedience  and  law  prevailed,  but 
applied  law  in  its  aggregate  results  meant  monstrous  injustice, 
systematically  and  mercilessly  enforced.  Unfortunately  this 
is  by  far  too  true  of  all  systems  of  human  laws.  The  idle 
favorites,  who  swarmed  about  the  court  fawning  on  the  king 
for  favors,  were  mostly  quite  without  merit.  True  there  were 
some  such  lofty  natures  as  Fenelon,  Pascal,  Bossuet,  Madame 
de  Sevigne,  La  Bruyere.  Moliere.  Corneille,  Racine,  La  Fon- 
taine and  other  thinkers  and  writers,  who  were  more  or  less 
about  the  court,  whose  plantings  in  the  moral  vineyard  have 


6o8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

borne  good  fruits,  but  the  recipients  of  the  great  bulk  oi  royal 
bounty  were  worse  than  mere  idlers.  They  were  conspicuous 
examples  of  the  corruption  of  a  despotic  system,  living  not 
merely  useless,  but  debauched  and  vicious  lives,  not  from  the 
bounty  of  a  rich  king  as  the  historians  usually  state  it,  but 
from  the  fruits  of  the  labors  of  the  needy  poor,  wrung  from 
them  either  by  the  public  tax  gatherers  on  pretense  of  pay- 
ment for  public  service,  or  as  the  share  of  the  produce  be- 
longing to  a  landowner  through  a  most  unjust  legal  theory 
of  ownership  of  the  earth.  Viewed  at  large  the  nation  ex- 
hibited a  brilliant  court,  permeated  with  moral  pestilence,  and 
a  vast  multitude  of  ignorant  and  spiritless  toilers,  who  labored 
and  died  in  misery  and  degradation.  Happiness  had  no 
abiding  place.  At  court  all  was  a  fever  of  hopes  and  fears, 
hanging  on  the  smiles  and  frowns  of  a  king. 

Though  Louis  was  king  till  his  death,  and  though  he  never 
ceased  to  give  personal  attention  to  public  affairs,  the  idea 
contained  in  the  memorable  expression  "I  am  the  state," 
gained  a  constantly  increasing  force  in  his  mind,  till  the  wel- 
fare of  the  people  he  should  have  served  ceased  to  be  a  matter 
of  consideration,  and  France  became  in  his  eyes  but  a  setting 
to  display  his  grandeur  and  power.  As  his  life  drew  towards 
its  close  he  witnessed  without  profit  the  necessary  results  of 
his  policy.  The  peasants,  artisans  and  traders  were  impover- 
ished and  reduced  in  numbers  by  wars  and  oppressive  burdens. 
The  court  demanded  increased  favors  to  sustain  its  gaieties. 
Foreign  enemies  combined  against  him,  and  his  exhausted 
armies  retired  before  them.  Lack  of  troops  and  of  money 
paralyzed  the  state,  and  famine  and  pestilence  scourged  the 
people. 

In  1 71 5  after  reigning  seventy-two  years  Louis  XIV  died, 
leaving  the  crown  to  his  great  grandson,  a  child  five  years  of 
age.  The  will  of  the  King,  which  made  his  illegitimate  son, 
the  Duke  of  IMaine,  guardian  of  the  young  King,  and  ap- 
pointed a  council  or  regency,  was  promptly  swept  aside  by 
the  Duke  of  Orleans,  who,  with  the  approbation  of  the  Parlia- 
ment of  Paris  and  the  populace,  assumed  the  regency,  freed 
from  the  restrictions  with  which  the  late  King  sought  to  cir- 


FRANCE  609 

cnmscribe  it.  The  regent  attempted  to  organize  a  ministerial 
system  with  six  boards,  for  foreign  affairs,  army,  navy, 
church  affairs,  home  affairs,  and  finance.  To  these  were 
afterward  added  one  for  commerce.  At  the  head  of  these, 
instead  of  men  chosen  on  account  of  their  fitness  for  work, 
he  selected  persons  of  rank,  under  whom  men  of  inferior 
degree,  but  more  capacity,  were  placed.  The  plan  proved  un- 
successful through  lack  of  merit  in  his  appointees.  The 
scheme  of  Law  to  relieve  the  financial  difficulties  of  the  time, 
which  has  met  with  such  severe  and  oft  repeated  condemna- 
tion, and  which  was  productive  of  so  many  imaginary  for- 
tunes and  so  much  real  misery,  yet  had  within  it  the  idea, 
which  has  since  been  often  utilized,  o;f  substituting  credit 
paper  for  coin.  His  disastrous  failure  resulted  more  from 
the  avidity  with  which  the  people  took  his  shares  and  turned 
in  their  money,  than  from  the  inherent  vice  of  the  scheme. 
Most  of  the  business  of  today  is  transacted  on  the  theory  that 
there  is  coin  on  deposit  to  pay  credit  balances  due  from  banks 
and  other  financial  institutions.  As  a  matter  of  fact  there 
is  ordinarily  about  one  dollar  for  every  ten  of  debt  in  the 
aggregate  of  the  banks,  but  this  in  ordinary  times  is  sufficient. 
Confidence  now  supplies  the  place  of  coin.  In  Law's  time 
confidence  was  excessive  at  first,  but  the  panic  quickly  ifol- 
lowed,  and  against  panic  there  is  no  security.  The  Mississippi 
company  might  have  been  given  a  basis  of  real  value  equal 
to  the  wildest  dream  of  Law,  but  it  was  in  fact  but  a  bubble 
t(jo  frail  to  stand  the  first  prick  of  criticism. 

In  1724  an  edict  was  issued  in  the  name  of  the  young 
King,  ostensibly  as  a  tribute  to  the  memory  and  to  carry  out 
the  design  of  Louis  XIV  to  extinguish  heresy.  This  edict 
condemned  "Preachers  to  the  penalty  of  death,  their  accom- 
j)lices  to  the  galleys  for  life,  and  women  to  be  shaved  and 
imprisoned  for  life.  Confiscation  of  property;  parents  who 
shall  not  have  baptism  administered  to  their  children  within 
twenty-four  hours  and  see  that  they  attend  regularly  the 
catechism  and  the  schools,  to  fines  and  such  sums  as  they 
may  amount  to  together,  even  to  greater  penalties.  Mid- 
wi\'es,  physicians,  surgeons,  apothecaries,  domestics,  relatives, 


6io  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

who  shall  not  notify  the  parish  priests  of  births  or  illnesses,  to 
fines.  Persons  who  shall  exhort  the  sick,  to  the  galleys  or 
imprisonment  for  life  according  to  sex;  confiscation  of  prop- 
erty. The  sick  who  shall  refuse  the  sacraments  if  they  re- 
cover, to  banishment  for  life;  if  they  die,  to  be  dragged  on 
a  hurdle."  Notwithstanding  this  savage  language  the  blood- 
thirsty spirit  of  St.  Bartholomew's  Eve  no  longer  prevailed  in 
the  land,  and  there  was  little  disposition  to  rigorously  enforce 
this  edict.  It  was  only  here  and  there  that  its  barbarities  were 
carried  into  effect.  The  general  sentiment  of  the  people  had 
moved  forward  to  higher  ground.  Louis  XV  exhibited  in 
marked  degree  the  inherent  weakness  and  vice  of  absolute  rule. 
He  was  indolent  and  voluptuous,  though  not  cruel  as  despots 
go.  It  is  always  impossibe  for  a  single  man  to  know  the 
needs  of  a  great  country,  no  matter  how  energetic  and  earnest 
he  may  be,  but  when  that  man  is  inert  the  state  is  left  to  drift, 
and  always  drifts  into  confusion  and  misfortune.  Though 
France  coveted  dominion  in  India  and  America,  there  was  no 
strong  combination  of  vigorous  men  working  in  concert  to 
maintain  it.  An  idle  king  and  ministers,  whose  main  purpose 
was  to  live  in  ease  and  luxury,  neglected  giving  needed  sup- 
port to  the  adventurous  spirits,  who  labored  to  extend  French 
power,  trade  and  influence  in  the  east  and  west.  England 
with  its  navy  had  become  master  of  the  sea,  and  a  dissolute 
court  had  not  the  foresight  and  self-denial  to  expend  the 
revenue  in  building  a  navy,  but  it  was  squandered  in  luxurious 
living.  India,  Canada  and  the  valley  of  the  Mississippi  were 
lost,  and  passed  under  the  rule  of  its  great  rival,  England. 
Continental  wars  wasted  blood  and  treasure  without  profit. 
The  Seven  Years'  war,  formally  declared  by  France  against 
England  in  January  1756,  involved  before  its  conclusion  Aus- 
tria, Prussia,  Russia,  Spain  and  Italy  and,  though  fought  main- 
ly in  Germany,  impoverished  and  exhausted  all  Europe.  Prus- 
sia bore  its  heaviest  brunt  and  Frederick  the  Great  estimated 
that  the  participants  lost  800,000  men.  The  French  court 
is  well  described  by  Montesquieu. 

"Ambition  amidst  indolence,  baseness  amidst  pride,  the  de- 
sire to  grow  rich  witliout  toil,  aversion  from  truth,  flattery, 


FRANCE  6ii 

treason,  perfidy,  neglect  of  all  engagements,  contempt  for  the 
duties  of  a  citizen,  fear  of  virtue  in  the  prince,  hope  in  his 
weakness,  and  more  than  all  that,  the  ridicule  constantly 
thrown  on  virtue  form,  I  trow,  the  characteristics  of  the 
greatest  number  of  courtiers,  distinctive  in  all  places  and  at 
all  times." 

The  very  firmness  with  which  the  doctrine  of  absolutism 
had  been  riveted  on  the  French  people,  under  a  weak  and 
indolent  monarch  such  as  Louis  XV,  afforded  the  example 
and  the  opportunity  for  successful  attack  upon  it.  King  and 
court  were  morally  and  intellectually  weak,  but  there  was 
growing  strength  among  the  people.  Students  and  philoso- 
phers were  already  looking-  behind  and  beyond  the  written 
edicts,  canons  and  decrees,  for  the  living  truth  as  the  only 
just  basis  of  authority.  Enlarged  intercourse  with  the  people 
of  other  European  states,  with  the  new  world  in  America  and 
the  old  in  India  and  the  east,  stimulated  inquiry  and  research 
into  every  field  of  knowledge.  There  were  many  active  brains 
in  France  busily  at  work.  Montesquieu,  Buffon,  Voltaire, 
Rousseau,  Diderot,  Alembert,  Fontenelle  are  great  names. 
In  seeking  new  truth  they  discovered  old  error.  The  falsity 
of  the  claims  to  dominion  over  mens  thoughts  and  consciences, 
their  lives  and  property,  became  apparent.  The  falsity  of  the 
claim  of  superiority,  which  had  so  long  supported  the  king 
and  those  who  thronged  his  court,  could  no  longer  be  con- 
cealed. Vice  and  immorality  appeared  as  such  though  prac- 
ticed by  kings,  cardinals  and  courtiers.  The  courts  too,  where 
questions  of  right  were  daily  discussed,  though  blinded  by 
adherence  to  established  rules  by  which  they  were  bound, 
whether  right  or  wrong,  at  least  perceived  that  the  king  ruled 
only  by  force  of  law,  and  that  he  too  was  therefore  inferior  to 
law.  The  first  internal  struggle  leading  up  to  the  great  revo- 
lution was  with  the  Parliaments  and  over  questions  of  taxa- 
tion. This  led  to  the  arrest  of  the  judges  and  finally  to  the 
dissolution  of  the  Parliaments  and  the  complete  reorganiza- 
tion of  the  judiciary  in  1771.  Louis  brooked  no  questioning 
of  his  power.  He  had  said  to  the  Parliament  of  Paris,  "The 
magistracy  does  not  form  a  body  or  order  separate  from  the 


6i2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

three  orders  of  the  kingdom,  the  magistrates  are  my  officers, 
in  my  person  alone  resides  the  sovereign  power,  of  which  the 
special  characteristic  is  the  spirit  of  counsel,  justice  and 
reason ;  it  is  from  me  alone  that  my  courts  have  their  existence 
and  authority."  How  little  did  he  understand  his  own  weak- 
ness and  the  growing  strength  and  increasing  knowledge  of 
the  people. 

He  died  in  1774,  and  his  grandson  Louis  XVI  at  the  age 
of  twenty  came  to  the  throne  with  Maria  Antionette,  daughter 
of  Maria  Theresa  of  Austria,  as  his  queen.  He  was  a  weak 
but  kindly  man,  neither  great  or  strong  enough  to  direct  the 
affairs  of  so  great  a  state.  He  had  the  fortune  to  call  to  his 
aid  some  strong  and  honest  ministers,  who  introduced  re- 
forms in  the  finances  beneficial  to  the  state,  but  correspond- 
ingly destructive  of  the  system  by  which  the  court  favorites 
obtained  their  greatest  incomes.  Turgot  first  and  then  Necker 
were  able  men,  who  sought  to  do  the  country  honest  service; 
but  the  corrupt  courtiers  gave  them  no  rest  and  finally  ob- 
tained their  dismissal.  The  American  Revolution,  following 
on  the  discussions  of  such  writers  as  Voltaire  and  Rousseau, 
produced  a  profound  impression  on  the  public  mind.  The 
opportunity  for  checking  the  growing  ascendency  oi  Eng- 
land, even  though  to  do  so  required  an  alliance  with  rebels, 
who  in  declaring  their  independence  had  denied  the  doctrine 
of  the  divine  right  of  kings  and  in  its  place  asserted  that  all 
governments  derive  their  just  powers  from  the  consent  of 
the  governed,  was  too  tempting  to  be  neglected.  Bourbon 
France  and  Spain,  exponents  of  the  doctrine  of  unlimited 
monarchy,  joined  forces  with  the  freemen  of  America  against 
England.  The  result  in  America  was  the  birth  of  a  great 
republic,  which  became  the  model  of  all  the  states  of  the  new 
world.  Not  less  profound  was  the  impulse  given  to  the  grow- 
ing conceptions  of  liberty  in  France.  Already  disgusted  with 
its  decaying  despotism  and  longing  if  or  a  new  national  life, 
the  nation  seized  with  avidity  the  inspiration  and  sought  at 
one  bound  to  gain  the  lofty  pinnacle  of  "liberty,  equality  and 
fraternity."  The  King  was  a  reformer  but  without  much 
knowledge  of  affairs  or  steadiness  of  purpose.     At  the  in- 


FRANCE  613 

stance  of  Necker  he  abolished  mortmain  and  serfdom  on  the 
royal  estates,  put  an  end  to  the  preliminary  tortures  to  which 
defendants  were  put  by  the  soft  name  of  the  "preparatory 
question"  and  caused  more  humane  treatment  of  those  con- 
fined in  prisons. 

The  age  of  intrigue  for  mere  power  had  passed,  and  the 
love  of  wealth  and  display  was  the  overmastering  passion  oi 
courtiers.  Financial  difficulties,  arising  from  the  inordinate 
demands  for  money  to  waste  in  vain  display  rather  than  for 
legitimate  governmental  uses,  were  sources  of  anxiety  to  the 
King  and  his  ministers.  The  nation  was  vitally  interested  in 
the  reforms  proposed  by  Turgot  and  Necker,  but  the  favorites 
were  equally  interested  in  defeating  them,  and  were  an  active 
force.  Public  sentiment  was  without  coherence  or  steadiness. 
The  court  constantly  called  for  more  money.  The  people  re- 
sisted increased  taxation.  On  Dec.  29,  1786,  Louis  announced 
in  council  that  he  would  convoke  an  assembly  of  notables  on 
January  29  "to  communicate  to  them  my  views  for  the  relief 
of  my  people,  the  ordering  of  the  finances  and  the  reforma- 
tion of  abuses."  The  session  did  not  open  till  Feb.  22,  1787. 
Tt  was  not  a  representative  body,  but  composed  of  one  hun- 
dred and  forty-four  members,  all  named  by  the  King  as  fol- 
lows :  seven  princes  of  the  blood  royal,  fourteen  archbishops 
and  bishops,  thirty-six  dukes  and  peers,  twelve  councillors  of 
state  and  masters  of  requests,  thirty-eight  judges,  twelve  depu- 
ties of  states  districts  and  twenty-five  municipal  officers. 
When  this  assembly  convened  the  fact  that  France  had  out- 
grown despotism  became  apparent.  The  public  demanded  an 
account  of  the  conduct  of  affairs,  and  to  know  what  became 
oi  the  revenue  before  undertaking  to  provide  a  greater  one. 
An  annual  deficit  of  100,000,000  livres  a  year  had  been  stead- 
ilv  forcing  the  treasury  into  deeper  and  deeper  embarassment. 
The  session  closed  on  IMay  25,  1787,  without  any  other  result 
than  increased  publicity  of  the  financial  situation  and  a  more 
widespread  understanding  of  the  nature  and  extent  of  the 
abuses  which  prevailed  and  bv  which  the  privileged  nobles, 
tax  farmers,  monopolists  and  court  favoritics  grew  rich  at 
the  expense  of  all  the  industrial  classes.     The  Assembly  left 


6i4  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  King  to  deal  with  his  difficulties  the  same  as  before.  His 
edicts  relating  to  the  stamp  tax  and  territorial  subvention 
were  registered,  and  then  the  registration  was  declared  null 
by  the  Parliament  of  Paris.  The  King  sent  the  Parliament 
away  to  Troyes.  The  growth  of  the  idea  that  all  were  sub- 
ject to  law  was  expressed  by  a  decree  of  the  Parliament,  in 
which  it  was  said,  "The  monarchy  would  be  transfigured  into 
a  despotic  form  if  ministry  could  dispose  of  persons  by  sealed 
letters,  property  by  beds  of  justice,  criminal  matters  by  change 
of  venue  or  cassation  and  suspend  the  course  of  justice  by 
special  banishments  or  arbitrary  removals."  Though  the  prin- 
ciples thus  declared  may  meet  approval,  they  were  invoked  to 
sustain  privilege  rather  than  to  enforce  justice.  But  the  idea 
that  the  land  and  the  people  belonged  to  and  existed  for  the 
king  and  his  court  was  fast  being  supplanted  by  the  better  one 
that  the  government,  whatever  its  form,  must  serve  the  people 
and  promote  their  welfare.  Though  we  read  so  much  of  the 
difficulties  with  which  the  government  was  surrounded,  those 
difficulties  did  not  have  their  basis  either  in  exceptionally  bad 
natural  or  business  conditions,  nor  in  the  ambitions  of  rebel- 
lious subjects,  but  in  the  fact  that  the  nation  had  outgrown 
its  governmental  system  and  demanded  better  principles  and 
more  efficient  execution  of  them.  The  nation  clamored  for 
the  States-General,  the  ancient  representative  body  of  the 
kingdom.  On  Aug.  6,  1788,  a  decree  was  promulgated  for 
their  convocation  on  the  ensuing  ist  of  May.  There  was  much 
agitation  of  the  questions  as  to  their  composition  and  the 
representation  and  mode  of  choice  of  the  Third  Estate,  the 
only  representative  of  popular  elements.  An  Assembly  of 
Notables  was  again  convened  Nov.  6,  1788,  but  adjourned  on 
December  12  without  accomplishing  more  than  the  discussion 
and  agitation  of  the  general  subject  of  governmental  and  fi- 
nancial reform.  The  composition  of  the  States-General  was 
finally  determined  by  the  King  as  follows,  i.  There  should  be 
at  least  i.ooo  deputies.  2.  That  the  number  should  he  formed 
as  nearly  as  possible  in  compound  ratio  to  the  population  and 
taxes  of  each  baliwick.  3.  That  the  number  of  deputies  of 
the  Third  Estate  should  be  equal  to  that  of  the  two  other  orders 


FRANCE  615 

together.  They  were  convoked  for  April  27,  1789.  Later  the 
number  was  fixed  at  1,200;  citizens  who  were  taxpayers  were 
declared  electors.  The  elections  caused  a  ferment  throughout 
the  provinces,  the  like  of  which  had  never  before  been  known 
in  any  country.  The  King  desired  to  effect  reforms,  but  was 
without  a  definite  policy.  He  had  called  together  representa- 
tives of  the  nation  to  consider  and  provide  for  its  needs  with 
no  further  preparation  than  a  partial  understanding  of  the 
gross  abuses  of  the  decaying  monarchy.  Naturally  and  logi- 
cally the  first  inquiry  was  directed  toward  ascertaining  what 
was  wrong.  The  one  overshadowing  fact  disclosed  to  even 
dull  minds  was  the  unmerited  power  and  privileges  of  the 
nobles  and  high  clergy  and  the  lavish  extravagance  of  the 
court.  Bad  harvests  aggravated  the  distress  of  the  poor,  but 
never  before  had  so  much  been  done  by  the  king  and  the  rich 
to  relieve  them.  Charity  did  not  satisfy,  when  the  poor  la- 
borer was  taught  by  the  agitators  that  his  rights  were  eqiral 
to  those  of  the  idle  court  favorites. 

Though  it  is  not  often  mentioned,  the  American  colonists 
derived  their  ideas  of  personal  liberty  and  individual  dignity 
to  some  extent  from  the  Indians,  who  absolutely  denied  the 
authority  of  rulers.  The  dissemination  of  American  ideas, 
thus  taken  from  the  savages,  among  a  people  of  most  lively 
sensibilities,  was  greatly  facilitated  by  the  students  and  ad- 
mirers of  Greek  and  Roman  liberty.  The  philosophers  had 
prepared  the  way  for  the  repudiation  of  monarchial  corrup- 
tion. The  nation  was  ready  to  condemn  the  bad  government 
and  the  false  theory  of  class  superiority  and  robbery  with 
which  it  was  oppressed,  but  it  was  not  prepared  to  construct 
a  new  S3'^stem.  When  the  States-General  convened,  separate 
rooms  were  provided  for  the  noblesse  and  the  clergy,  but  the 
Third  Estate,  equal  in  numbers  to  both,  had  only  the  throne 
room,  intended  for  the  joint  meetings  of  the  three  orders,  in 
which  to  assemble.  The  verification  of  credentials  of  mem- 
bers was  left  to  the  assembly  itself,  as  well  as  the  question 
whether  the  sittings  should  be  in  one  or  separate  chambers. 
The  Third  Estate,  representing  the  common  people,  was  in 
possession  of  the  assemblv  room,  and  after  inviting  the  other 


6i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

orders  to  attend  proceeded  to  determine  who  were  en- 
titled to  seats,  admitting  such  of  the  inferior  clergy  and  no- 
bility as  chose  to  come  in.  They  chose  the  name  of  National 
Assembly,  by  which  this  most  memorable  gathering  is  known 
in  history.  When  the  session  was  opened  by  the  King  at 
Versailles  on  May  5,  there  were  about  1,100  deputies  present, 
of  whom  595  belonged  to  the  Third  Estate;  and  of  these 
three-fifths  were  lawyers. 

The  States-General  had  been  summoned  by  the  King  to  aid 
him  with  money  and  to  still  the  complaints  against  abuses, 
but  when  convened  it  proceeded  to  act,  not  as  an  aid  to  a 
sovereign  king,  but  as  the  representative  of  a  sovereign  peo- 
ple. On  June  20,  after  having  undertaken  to  annual  all  the 
decrees  of  the  Assembly,  the  King  caused  the  doors  of  their 
hall  to  be  closed  and  decreed  a  royal  session  on  the  22nd. 
The  Assembly  met  nevertheless  in  a  tennis  court  and  passed 
a*  decree,  "That  the  National  Assembly  considering  itself 
called  to  determine  the  constitution  of  the  kingdom,  to  effect 
the  regeneration  of  public  order,  and  to  uphold  the  true  prin- 
ciples of  the  monarchy,  declaring  that  nothing  shall  prevent 
its  continuing  its  deliberations,  and  that  wherever  its  members 
are  united,  there  is  the  National  Assembly;  Decrees  that  all 
the  members  of  this  Assembly  shall  this  instant  take  a  solemn 
oath  never  to  separate,  until  the  constitution  of  the  kingdom 
be  established  and  confirmed  upon  solid  foundation."  All  the 
deputies  but  one  took  the  oath.  On  the  22nd,  the  royal  ses- 
sion not  taking  place,  they  assembled  in  the  church  of  St. 
Louis,  where  the  majority  of  the  representatives  of  the  clergy 
joined  them,  one  hundred  forty-eight  in  number.  On  the  23rd 
the  King  opened  the  session  with  a  speech  and  caused  a  decla- 
ration to  be  read  declaring  null  all  acts  of  the  Assembly  and 
limiting  their  deliberations  to  certain  subjects,  mainly  relating 
to  taxation ;  adding,  "None  of  your  projects,  none  of  your 
ordinances,  can  have  the  authority  of  law  without  my  special 
approbation.  T  command  you,  gentlemen,  to  adjourn  im- 
mediately, and  to  appear  to-morrow  morning,  each  in  the 
chamber  appropriated  to  his  order,  to  resume  there  the  usual 
sessions."     The  king  left,  followed  by  the  no])ility  and  part 


FRANCE  617 

of  the  clergy,  but  the  Third  Estate  remained.  The  grand 
master  of  ceremonies  said  to  Bailhe,  president  of  the  Assem- 
bly, "Monsieur  you  have  heard  the  King's  orders"  ?  Baillie 
replied  'T  cannot  dissolve  the  Assembly  until  it  has  deliberated 
upon  the  matter.  I  believe  that  the  assembled  nation  can  re- 
ceive no  command."  This  was  revolution.  It  denied  the 
sovereignty  of  the  King.  On  the  24th,  forty-seven  noble  depu- 
ties w^ith  the  Duke  of  Orleans  at  their  head  took  seats  in  the 
Assembly,  and  on  the  27th  the  King,  overawed  by  the  popular 
tumult  at  Paris  and  the  desertion  Oif  the  French  guard,  who 
sided  with  the  populace,  to  secure  his  own  safety  requested 
the  nobles  to  repair  to  the  common  hall,  which  they  did. 

Who  can  adequately  describe  the  awakening  of  a  great  na- 
tion after  many  centuries  of  tyranny,  maintained  in  accord- 
ance with  rules  called  laws,  which  their  teachers  both  spiritual 
and  temporal  have  taught  the  people  to  obey  as  of  divine 
origin  and  sanction,  to  a  realization  of  the  monstrous  falsity 
of  the  whole  system.  The  idols  were  broken  and  found  to  be 
but  base  impostures.  The  ferment  spread  throughout  the 
nation  as  the  great  leaders  of  the  Assembly  boldly  declared  the 
self-evident  truths  of  liberty  and  justice.  The  fruits  of  the 
teachings  of  Montesquieu,  Fenelon,  Rousseau  and  Voltaire 
ripened  all  at  once  in  the  hot  house  of  the  Assembly.  In 
Paris  the  most  exalted  aspirations  of  pure  patriots  for  an 
age^of  justice  cooperated  with  the  hatred  and  savagery  of  the 
dregs  of  society,  who  called  for  vengeance  on  those  they 
deemed  the  cause  of  their  degradation.  The  Assembly  led 
the  march  of  ideas  grandly  at  Versailles,  but  the  ferment 
went  on  in  the  multitude  at  Paris.  The  courtiers  looked  to 
the  army  to  preserve  the  King's  authority  and  protect  them. 
The  revolutionary  forces  in  Paris  organized.  There  were  the 
electors,  the  Orleans  party  and  the  Breton,  afterwards  called 
the  Jacobin  Club.  On  July  i  t  the  King  dismissed  Necker, 
the  only  minister  in  whom  the  people  had  confidence.  On 
the  fourteenth  of  July  the  Parisians  broke  into  the  Dome  des 
Invahdes,  seized  2,800  guns  and  stormed  the  hated  Bastile. 
the  prison  fortress,  which  stood  as  a  symbol  of  tyranny,  and 
at  once  proceeded  to  demolish  it.     There  were  lives  lost  in 


6i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  combat  and  faithless  executions  of  prisoners  taken,  whose 
blood  the  mob  demanded.  The  national  guard  was  organized 
by  authority  of  the  Assembly  and  the  districts  of  Paris  with 
La  Fayette  at  its  head.  Uprisings  were  not  confined  to  Paris 
but  spread  throughout  the  provinces  and  were  everywhere  di- 
rected against  those  who  profited  by  the  abuses  of  the  old 
regime. 

The  Assembly  proceeded  with  its  deliberations,  which 
reached  a  climax  on  August  4,  expressing  at  one  session  the 
condemnation  of  a  vast  system  of  oppression.  From  161 4  till 
1789  the  nation  had  not  been  consulted  in  regard  to  public  af- 
fairs, despotism  and  privilege  had  flourished  at  the  expense 
of  the  people.  No  wonder  that  the  King  and  the  representa- 
tives of  the  people  were  so  wide  apart  in  their  purposes.  The 
King  looked  only  from  the  standpoint  of  long  recognized 
power.  The  assembly  was  profoundly  conscious  of  the  gross 
and  manifold  abuses  of  that  power.  The  King  wished  in- 
creased revenues  and  tranquil  submission  to  authority.  The 
people  demanded  relief  from  excessive  burdens  and  some 
measure  of  justice.  The  many  lawyers  of  the  Assembly  un- 
derstood the  laws  and  appreciated  the  inequity  of  them. 
Many  of  the  nobility  and  clergy  recognized  the  moral  inde- 
fensibility of  their  great  privileges.  On  the  evening  of  this 
memorable  session  the  Viscount  de  Noailles,  speaking  to  the 
demand  of  the  government  that  a  decree  be  passed  to  put  an 
end  to  "the  disturbances  in  the  provinces  by  inviting  the  people 
to  obey  the  ancient  laws  till  modified,  declared  that  the  only 
means  of  restoring  peace  was  to  decree  immediately  a  pro- 
portional levy  of  taxes  on  all  citizens  ratably,  the  adjustment 
of  farm  rents  on  the  basis  of  income  and  the  abolition  of 
statute  labor,  mortmain  and  all  personal  servitude.  This  blow 
at  feudal  privilege  was  seconded  by  the  Duke  d'  Aiguillon,  the 
richest  nobleman  of  France.  No  voice  was  raised  in  defense 
of  feudal  injustice.  Then  it  was  demanded  that  the  recipients 
of  royal  favors,  the  court  seigniors,  should  bear  their  part. 
The  Dukes  of  Guiche  and  Mortemart  replied  that  they  were 
ready  to  renounce  the  king's  benefits  and  share  the  common 
burdens.    Then  privilege  after  privilege  was  attacked  in  rapid 


FRANCE  619 

succession.  Employments  were  opened  to  all  citizens  alike, 
and  penalties  for  crime  were  made  the  same  to  all  classes. 
Feudal  courts,  .through  which  the  nobles  were  judges  over 
their  vassals,  were  abolished.  Hunting  rights,  enjoyed  only 
by  the  nobility,  were  opened  to  all.  Then  came  the  turn  of 
the  clergy ;  the  cures  were  shorn  of  their  perquisites,  and  the 
bishops  of  their  titles.  Having  disposed  of  the  privileges  of 
the  nobles  and  clergy,  those  of  the  provinces  and  cities  were 
brushed  away,  and  the  deputies  for  Brittany,  Provence  and 
Languedoc,  and  for  Paris,  Marseilles,  Bordeaux  and  Lyons 
renounced  all  their  great  advantages  with  respect  to  imposts. 
Then  came  the  suppression  of  the  privileges  of  freemen  and 
tradesmen  in  the  monopoly  of  work.  Thus  in  a  single  night 
sitting  from  8  p.  m.  to  2  a.  m.  fell  the  whole  system  of 
privileges,  and  in  its  place  stood  the  great  French  nation  com- 
posed of  citizens,  each  with  equal  rights  before  the  law.  Never 
in  all  time  was  an  equal  number  of  abuses  exposed  and  laid 
low  by  any  representative  of  a  nation  at  a  single  session. 
Radical,  thorough  and  far-reaching  as  these  measures  were, 
they  were  all  clearly  and  unqualifiedly  right,  and  this  accounts 
for  the  celerity  with  which  each  abuse  ifell  in  its  turn. 

On  the  twenty-sixth  of  the  same  month  the  great  work  of 
the  fourth  was  supplemented  by  the  adoption  of  the  following 
Declaration  of  the  Rights  of  the  Man  and  of  the  Citizen, 
"i.  Men  are  born  and  remain  free  and  equal  in  their  rights. 
2.  These  rights  are  :  liberty,  property,  safety  and  resistance 
to  oppression.  3.  The  principle  of  all  sovereignty  resides  in 
the  nation.  No  body,  no  individual  can  exercise  authority 
not  emanating  directly  from  it.  4.  Liberty  consists  in  the 
power  to  do  all  that  which  does  not  injure  others.  5.  Law 
has  the  right  to  forbid  only  actions  detrimental  to  society. 
6.  Law  is  the  expression  of  the  general  will.  All  citizens 
have  the  right  to  concur  personally  or  through  their  repre- 
sentatives in  its  enactment.  It  should  be  the  same  ifor  all, 
whether  it  protect  or  whether  it  punish.  All  citizens  being 
equal  in  its  eyes,  are  equally  admissible  to  all  dignities,  public 
places  and  employments,  according  to  their  capacity,  their 
virtue  and  their  talents.     7.  No  man  can  be  accused,  arrested 


620  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

or  imprisoned  save  in  cases  determined  by  law  and  according 
to  the  forms  it  has  prescribed.  8.  The  law  should  establish 
only  penalties  strictly  and  evidently  necessary,  and  no  one 
can  be  punished  save  in  virtue  of  a  law  established  and  pro- 
mulgated before  the  offense  and  legally  applied.  9.  Every 
man  being  presumed  innocent  until  he  has  been  proven  guilty, 
if  it  is  judged  indispensable  to  arrest  hin"!,  every  rigor  not 
necessary  to  secure  his  person  should  be  severely  reproved 
by  the  law.  10.  No  one  shall  be  disquieted  on  account  of  his 
opinions,  even  his  religious  ones,  provided  their  manifestation 
does  not  disturb  the  public  order  established  by  law.  1 1 .  The 
free  communication  of  thoughts  and  opinions  is  one  of  the 
most  precious  rights  of  man.  Every  citizen  can  therefore 
speak,  write  and  print  freely,  except  he  abuse  his  liberty  in 
cases  determined  by  law.  12.  The  guaranty  of  the  rights  of 
the  man  and  the  citizen  necessitates  a  public  force.  13.  For 
the  maintenance  oi  the  public  force  and  for  the  expenses  of 
administration,  a  general  tax  is  indispensable.  It  shall  be 
equally  divided  among  all  citizens,  in  proportion  to  their 
ability.  14.  All  citizens  have  the  right  to  aver  of  themselves 
or  through  their  representatives  the  necessity  of  the  public 
tax,  to  freely  consent  to  it,  to  watch  over  its  distribution,  to 
determine  its  quota,  its  assessment  its  collection  and  its  dura- 
tion. 15.  Society  has  the  right  to  demand  of  every  public 
agent  an  account  of  his  administration.  16.  Every  society  in 
which  the  guaranty  of  rights  is  not  assured,  nor  the  division 
of  authority  determined,  has  no  constitution.  17.  Property 
being  an  inviolable  and  sacred  right  no  one  can  be  deprived  of 
it,  unless  when  public  necessity  legally  averred,  evidently  de- 
mands it,  and  under  the  condition  of  a  just  and  previously  ar- 
ranged indemnity."^  This  was  the  grandest  chart  of  liberty 
and  justice  ever  proclaimed,  but  the  struggle  to  enforce  its 
precepts  was  yet  to  come.  To  give  form  to  a  reorganization 
of  society,  which  should  secure  the  enjoyment  of  these  prin- 
ciples, was  a  task  of  far  greater  difficulty  than  to  formulate 
and  declare  them.  The  heart  of  the  nation  responded  ad- 
mirablv  to  the  lofty  sentiments  of  the  Assembly,  and.  though 

'  Martin,  1-60. 


FRANCE  621 

there  were  contiicts  in  various  quarters,  the  desire  for  a  new 
order  of  things  was  general.  Everywhere  the  people  pro- 
ceeded to  reconstruct  and  organize.  The  cities  chose  their 
magistrates,  and  the  national  guard  was  organized  through- 
out the  provinces.  The  Assembly  undertook  to  reconstruct 
the  whole  system  of  government.  The  old  Parliaments  were 
abolished  and  a  graded  system  of  courts,  from  justices  of  the 
peace  with  jurisdiction  in  petty  cases  to  a  court  of  cassation 
with  jurisdiction  for  the  correction  of  errors  of  law  over  the 
whole  nation,  was  devised.  Intermediate  were  the  district 
courts,  composed  of  judges  elected  by  the  people.  Jury  trial 
was  provided  ior  in  criminal  cases.  Commercial  tribunals 
for  the  merchants  were  also  established.  In  place  of  the 
ancient  thirty-two  provinces  the  country  was  divided  into 
eighty-four  departments,  each  of  which  was  divided  into  dis- 
tricts and  these  into  cantons.  Primary  assemblies  were  to  be 
held  in  the  cantons,  which  were  to  choose  members  of  the  de- 
partmental assembly,  and  these  were  to  name  the  members  of 
the  National  Assembly.  The  suffrage  was  restricted  to  citizens 
twenty-five  years  of  age,  who  had  lived  one  year  in  the  coun- 
try, paid  a  direct  tax  amounting  to  three  days  labor  and  who 
were  not  hired  servants.  Local  self-government  was  provided 
through  representative  bodies  in  the  cantons,  districts  and 
departments.  The  king  had  the  right  to  suspend  local  ad- 
ministrations not  in  accordance  with  his  orders  for  the  exe- 
cution of  the  laws,  but  subject  to  confirmation  or  abrogation 
by  the  Assembly. 

The  spontaneous  movement  of  the  people  in  the  direction 
of  reorganization  did  not  stop  with  the  choice  of  local  officers 
and  the  organization  of  the  guard.  To  defend  against  law- 
less bands  and  apprehended  dangers  they  formed  leagues  one 
with  another.  This  movement  l)egan  in  September  1789  and 
continued  till  the  Federation  spread  throughout  all  France  as 
a  pledge  and  bond  oi  concord  and  union.  On  July  14,  1790. 
the  anniversary  of  the  taking  of  the  Bastile,  a  grand  festival 
was  held  at  Paris,  attended  by  15,000  deputies  representing 
the  national  guard  and  it, 000  soldiers  and  sailors  from  the 
army  and  navy.     The  event  was  a  joyous  one.     La  Fayette  in 


622  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  name  of  the  national  guard  took  the  civic  oath,  and  the 
King  said  from  his  throne,  "I  King  of  the  French,  swear  to  up- 
hold the  constitution  decreed  by  the  National  Assembly  and 
accepted  by  me."  A  great  banquet  and  fete  followed.  The 
revolution  seemed  to  have  been  accomplished,  and  the  spirit 
of  concord  and  fraternity  prevailed  everywhere.  This  trans- 
port of  lofty  sentiment  presented  a  spectacle  not  to  be  decried 
because  of  the  terrible  days  that  were  to  come.  It  was  a 
day's  realization  of  a  possible  .future,  only  to  be  made  perma- 
nent by  a  long  struggle  and  much  suffering.  In  December 
1789,  in  order  to  supply  funds  for  the  pressing  necessity  of 
the  state,  it  was  resolved  to  sell  the  lands  and  buildings  be- 
longing to  the  Crown, — except  the  palaces  and  forests, — and 
part  of  the  church  property  which  had  been  declared  to  belong 
to  the  nation ;  but  as  this  would  require  time,  negotiable  bonds 
amounting  to  400,000,000  livres  were  issued  and  secured  by 
a  pledge  of  this  property.  As  they  were  not  readily  accepted, 
they  were  given  a  forced  currency.  In  September  1890,  finan- 
cial difficulties  having  still  increased,  a  further  issue  of  800,- 
000,000  was  authorized.  The  scheme  of  Law  in  substance 
was  thus  again  resorted  to. 

While  the  just  principles  of  the  revolution  commended 
themselves  to  the  moral  sense  of  the  people  generally,  ancient 
prejudices  and  the  habits  and  opinions  passed  down  from  gen- 
eration to  generation  could  not  be  eradicated  in  a  day  or  a 
year.  The  nobility  had  been  accustomed  to  despise  all  useful 
labor,  to  scorn  all  activities  but  those  of  war  and  the  court. 
Their  personal  following  had  been  accustomed  to  look  solely 
to  them  for  employment  and  support.  The  structure  of  so- 
ciety could  not  be  demolished  and  reorganized  at  a  single 
stroke.  More  deep  seated  still  was  the  reverence  for  the 
established  church,  to  which  a  great  majority  of  the  people 
adhered.  Religious  habits  are  strong  everywhere  and  among 
an  unlearned  people,  such  as  the  masses  of  the  French  then 
were,  the  influence  of  the  clergy  is  very  powerful.  When  con- 
fronted in  the  Assembly  by  the  brilliant  leaders  of  the  revolu- 
tion, the  representatives  of  the  priesthood  had  yielded  to  the 
demands  of  justice,  but  when  the  body  of  the  clergy  were 


FRANCE  623 

called  on  to  give  up  the  great  properties  and  privileges  they 
had  so  long  enjoyed,  selfishness  again  resumed  its  sway,  and 
the  sacredness  of  ecclesiastical  rights  was  asserted  in  oppo- 
sition to  the  authority  of  the  Assembly.  The  Pope  too  inter- 
posed his  authority  against  the  destruction  of  ecclesiastical 
privilege.  The  great  multitude  of  priests  high  and  low  had 
been  accustomed  to  a  certain  scale  of  living  at  the  expense  of 
the  people.  To  adjust  themselves  to  a  complete  change  of 
system  was  no  easy  task,  and  all  the  inertia  of  a  great  and 
long  dominant  religious  establishment  was  opposed  to  the  new 
order  of  things.  Though  many  individuals  among  the  priest- 
hood were  most  zealous  and  intelligent  reformers,  and 
though  a  large  portion  of  the  representatives  of  the  clergy 
had  joined  with  the  Third  Estate  in  the  most  radical  measures 
of  the  Assembly,  the  great  church  organization  still  stood 
riveted  to  the  traditions  and  prejudices  of  the  past  and  hostile 
to  the  attacks  on  its  great  abuses  of  privilege. 

The  nobles,  though  many  of  them  had  been  carried  along 
by  the  waves  of  lofty  sentiment  that  ruled  the  Assembly,  and 
though  among  them  were  earnest  and  thoroughly  determined 
reformers  like  La  Fayette,  were  still  as  a  class  tied  to  all  that 
was  bad  in  the  structure  of  society.  Deprived  of  their  great 
privileges,  many  of  them  were  simply  contemptible  as  men. 
Without  a  habit  of  useful  effort  or  a  desire  to  do  good  in  the 
world,  they  found  themselves  cast  down  from  their  positions 
of  superiority  and  rated  at  their  true  value.  Intrigue  for 
unmerited  advantage  had  been  in  large  measure  their  occupa- 
tion under  the  monarchy,  and  intrigue  to  regain  their  privi- 
leges was  their  natural  recourse  when  the  revolution  came. 

These  powerful  forces,  the  nobles  and  their  dependents  and 
the  clergy,  were  to  be  overcome  within  the  state  before  the 
fruits  of  the  revolution  could  be  made  secure.  Without  the 
state  dangers  threatened  on  every  hand.  The  spirit  of  the 
revolution  was  opposed  to  the  spirit  of  class  and  church  privi- 
lege, which  prevailed  everywhere  in  Europe.  All  the  ruling 
forces  of  all  the  neighboring  states  were  vitally  interested  in 
maintaining  the  abuses  of  power  which  the  revolution  had 
overthrown.     The  claim  of  the  right  of  the  people  to  rule 


624  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

was  destructive,  not  only  of  monarchical  authority  but  of  all 
that  vast,  false  and  vicious  system  of  lay  and  ecclesiastical 
aristocracy,  which  for  so  many  ages  cursed  and  oppressed  the 
multitude.  The  leaders  of  the  revolution  soon  perceived  that 
all  these  forces  were  to  be  reckoned  with.  Distrust,  often 
well  founded,  caused  the  patriots  to  closely  watch  the  old 
aristocracy.  The  Jacobin  Club  became  the  most  potent  organi- 
zation of  the  enemies  of  privilege.  Its  headquarters  were  in 
Paris,  where  most  of  the  leaders  of  the  Assembly  were  mem- 
bers; it  established  branches  in  every  part  of  the  kingdom, 
with  which  it  kept  up  an  active  correspondence. 

The  Assembly  reorganized  the  clerical  establishment  and 
required  the  clergy  to  take  the  civic  oath.  The  Pope  inter- 
posed his  authority  and  by  his  letter  suspended  from  their 
functions  those  priests  who  having  already  taken  the  oath  did 
not  retract  it  within  forty  days.  Refractory  bishops  and 
priests  sought  to  arouse  their  flocks  to  oppose  the  authority 
of  the  Assembly.  The  Assembly  had  usurped  functions  long 
regarded  as  belonging  exclusively  to  church  authority.  Louis 
had  his  Easter  services  in  1790  performed  by  a  refractory 
priest.  This  was  denounced  as  treason.  On  the  night  of  June 
20,  1 79 1,  the  King  and  Queen  fled  from  the  Tuileries  through 
an  unguarded  gate,  leaving  a  proclamation  protesting  against 
all  the  acts  to  which  he  had  assented  during  his  captivity. 
Great  was  the  commotion  at  Paris.  At  Varennes  the  fugitive 
King  and  Queen  were  arrested  on  the  night  of  the  twenty-first 
and  the  next  day  they  were  taken  back  to  Paris.  General 
Bouille,  who  had  undertaken  to  guard  the  King's  flight,  found 
himself  unable  to  do  so.  The  whole  country  rose  against 
him,  and  many  of  the  troops  sided  with  the  Assembly,  which 
had  ordered  that  the  King  be  brought  back.  By  order  of  the 
Assembly  the  King  and  Queen  remained  at  the  Tuileries  under 
guard.  The  King  expressed  himself  as  satisfied  that  the  people 
of  France  supported  the  Assembly.  On  July  17  there  was  a 
most  unfortunate  tumult  at  the  Champ  de  Mars,  the  scene  of 
the  festivities  of  a  year  before,  during  which  the  national 
guard  fired  on  the  multitude  and  killed  many.  On  Sept.  3, 
179T,  the  Assembly,  having  completed  the  revision  of  its  work, 


FRANCE  625 

bore  the  constitution  to  the  King  for  his  approval.  He  sent 
his  acceptance  ten  days  afterward,  and  on  Sept.  14  he  went 
to  the  Assembly  and  there  swore  to  be  faithful  to  the  nation 
and  to  the  law.  On  the  thirtieth  he  attended  its  closing  ses- 
sion, and  the  great  National  Constituent  Assembly  ended  its 
labors.  Of  it  La  Fayette  said,  "The  Assembly  dissolved  vol- 
untarily, without  any  of  its  members  having  won  either  for- 
tune or  place,  or  titles,  or  power;  and  we  confidently  affirm 
that  never  was  an  association  of  men  led  by  a  truer  devotion 
to  all  pertaining  to  the  liberty  and  consequently  to  the  real 
honor  of  a  nation." 

The  elections  for  the  new  Assembly  had  taken  place  in 
September.  It  opened  October  i,  1791  with  seven  hundred 
and  thirty  members,  including  many  young  men  twenty-five 
to  thirty  years  old.  On  the  seventh  the  king  attended  and 
made  a  short  address,  favorable  to  the  principles  of  the  con- 
stitution. i\Iany  of  the  nobility  had  fled  from  France  and 
gathered  upon  the  German  frontier,  where  they  constantly 
plotted  and  solicited  foreign  aid  to  overthrow  the  constitution. 
Decrees  were  issued  recalling  them,  and  complaints  were  made 
against  the  governments  which  sheltered  them.  On  April  20, 
1792,  the  Assembly  declared  war  against  the  King  of  Hungary 
and  Bohemia.  The  approach  of  foreign  enemies  and  the  dread 
of  internal  conspiracies  kept  the  nation  and  the  capital  in  a 
ferment.  The  undisciplined  army  at  first  met  with  reverses, 
which  ardent  revolutionists  were  disposed  to  charge  to  treason. 
The  radicals  clamored  for  the  deposition  of  the  King.  On 
Aug.  10,  1792,  the  mob  mvaded  the  Tuileries,  from  which  the 
King  and  Queen  took  refuge  in  the  Assembly.  The  Swiss 
guard,  having  fired  into  the  throng,  were  massacred.  The 
Assembly  overawed  by  the  mob  passed  a  decree,  "That  the 
French  people  is  invited  to  form  a  National  Convention.  The 
chief  of  the  executive  power  is  suspended  from  its  iunctions 
until  the  National  Convention  has  spoken.  Every  public  func- 
tionary and  every  soldier,  who  in  these  days  of  alarm  shall 
abandon  his  post,  is  declared  a  traitor  to  the  country."  The 
right  of  suffrage  was  extended  to  all  citizens  over  twenty-five 
living  from  the  proceeds  of  their  labor.     On  the  next  day  the 


626  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

primary  elections  were  fixed  for  August  26  and  the  meeting 
of  the  convention  for  September  20. 

The  power  that  had  directed  the  attack  on  the  Tuileries 
and  that  now  rose  into  unenviable  prominence  was  the  rep- 
resentative of  the  sections  of  Paris.  At  a  new  election  their 
number  was  raised  to  288,  who  assumed  the  general  powers 
of  the  Paris  Commune.  Never  was  there  such  a  lamentable 
exhibition  of  the  evil  effects  of  mutual  distrust  and  threats  of 
vengeance  as  at  this  time.  Ardent  republicans  clamored  for 
the  execution  of  the  political  prisoners.  Royalists  in  bravado 
threatened  death  to  the  revolutionists  when  the  power  of  the 
king  should  be  restored.  The  air  was  filled  with  talk  of  blood 
and  the  passions  of  the  most  brutal  became  thoroughly 
aroused,  while  even  the  more  humane  lived  in  an  atmosphere 
filled  with  the  contagion  of  violence  and  malice.  The  Paris 
Commune  appointed  a  Committee  of  Surveillance,  composed 
of  violent,  bad  men,  including  Marat  the  Madman.  On  Sep- 
tember 2  twenty  priests,  who  refused  to  take  the  oath,  were, 
while  being  transferred  to  the  Abbaye  prison,  nearly  all  massa- 
cred by  their  guards.  Then  iollowed  the  slaughter  of  other 
prisoners  under  the  direction  of  this  Committee,  backed  by  a 
bloodthirsty  mob.  No  public  authority  interfered.  All  seemed 
paralyzed.  The  general  public  conscience,  which  had  been 
warped  by  the  intemperate  language  of  extremists,  did  not 
awaken  to  the  enormity  of  the  crimes  which  were  being  com- 
mitted till  it  was  too  late.  The  slaughter  went  on  through 
the  second  and  third  and  did  not  cease  till  the  sixth,  during 
which  time  more  than  1,300  victims  suffered  death.  Only 
about  one-third  of  these  were  political  offenders.  The  rest 
were  prisoners  charged  with  crime. 

By  the  seventeenth  the  Assembly  began  to  reassert  its 
authority.  It  ordered  new  elections  for  members  of  the  Con- 
vention in  Paris,  where  Marat  and  other  leaders  of  the  massa- 
cre had  been  chosen  through  intimidation  of  the  better 
elements,  prohibited  all  night  searches,  authorized  all  persons 
to  resist  violation  of  their  domicils  by  force,  and  required  the 
mayor's  signature  to  all  orders  of  arrest.  Tt  further  decreed 
that  in  any  town  where  the  legislative  body  was  in  session. 


FRANCE  627 

whoever  sounded  the  tocsin  or  fired  the  alarm  gun  without 
order  should  be  put  to  death.  On  September  21  the  As- 
sembly passed  out  of  existence  and  the  National  Convention 
took  its  place. 

The  first  important  act  of  the  Convention,  passed  by  ac- 
clamation on  that  day  w^as,  "The  National  Convention  decrees 
the  abolition  of  royalty  in  France."  It  was  further  decreed 
that  all  public  enactments  should  date  from  September  22  as 
the  first  day  of  the  year  i  of  the  Republic.  On  the  borders 
the  armies  of  France  were  gaining  victories,  not  so  much  by 
force  of  numbers  as  of  ideas.  The  liberty  held  out  to  people 
everywhere  was  gladly  accepted  in  Belgium,  Savoy,  Nice  and 
along  the  Rhine,  and  the  spirit  animating  the  army  gave  it  a 
new  force  to  which  the  soldiers  of  kings  were  unaccustomed. 
On  December  15  the  Convention  decreed  that  in  territory  oc- 
cupied by  the  armies  of  France  the  generals  should  proclaim 
the  abolition  of  existing  imposts,  titles,  feudal  claims,  chattel 
or  personal  servitude,  and  exclusive  rights  of  the  chase,  and 
all  privileges,  and  "proclaim  the  sovereignty  of  the  people 
and  the  abolition  of  all  existing  authorities;  they  shall  con- 
voke the  people  into  primary  assemblies  to  organize  a  provis- 
ional administration." 

The  trial  of  the  King  on  the  charge  of  treason  by  the  Con- 
vention had  been  in  progress,  and  on  January  15  and  16  a 
vote  was  taken  on  three  questions.  On  that  of  guilt  683  out 
of  the  721  members  voted  in  the  affirmative.  On  the  question 
of  submitting  the  decision  to  ratification  by  the  people  there 
were  424  votes  against  to  283  for.  On  the  penalty  387  voted 
for  death  against  334.  On  the  twenty-first  he  was  executed. 
Following  a  levy  ifor  300,000  men  to  meet  the  enemies  of 
France,  there  was  a  bloody  revolt  on  the  lower  Loire  in  La 
Vendee.  Dumouriez,  who  commanded  the  army  in  Belgium, 
turned  traitor  and  sought  to  deliver  the  army  to  the  enemy. 
England,  in  which  there  had  been  some  sympathy  with  the 
revolution,  was  shocked  by  the  execution  of  the  king,  and  its 
interests  were  attacked  by  the  course  pursued  in  the  Lowlands. 
It  began  preparations  for  war.  Distrust  grew  among  the 
republican  factions.     On  March  9  the  Convention  established 


628  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  revolutionary  tribunal  to  pass  sentence  on  conspirators  and 
counter  revolutionists.  On  April  6  a  committee  of  safety 
composed  of  nine  members,  to  deliberate  in  secret,  was  estab- 
lished, to  take  the  place  of  a  prior  conmiittee  of  twenty.  This, 
the  Committee  of  Public  Welfare,  became  the  executive  head 
of  the  nation,  with  Danton  and  Cambon  as  its  leading  mem- 
bers. It  was  to  be  changed  every  month.  On  May  i8  a  com- 
mittee of  twelve  was  appointed  by  the  Convention  to  inquire 
into  the  conduct  of  the  Commune.  This  met  with  violent  op- 
position from  the  radicals  of  the  city,  and  the  commission  was 
soon  abolished.  The  radicals  were  not  appeased  and  on  June 
2  the  Parisian  mob,  under  the  lead  of  Marat,  invaded  the  con- 
vention and  by  intimidation  forced  it  to  vote  the  arrest  of 
thirty-one  of  its  most  patriotic  members,  who  opposed  the 
violent  measures  of  the  Eveche  and  the  Jacobins.  Nothing 
can  better  show  the  prevalence  of  a  genuine  spirit  of  progress 
than  the  fact  that,  amid  all  the  turmoil  and  violence  with 
which  they  were  surrounded,  the  Convention  on  the  third  and 
fourth  of  June  appointed  special  committees  to  prepare  the 
civil  code,  to  offer  rewards  to  authors  of  good  elementary 
school  books,  and  to  regulate  the  division  of  the  public  prop- 
erty. On  June  23  a  new  constitution  was  adopted,  which  con- 
tained among  others  a  provision,  that  laws  should  be  submitted 
to  a  vote  of  the  people  in  case  within  forty  days  after  passage 
by  the  Assembly  one-tenth  of  the  primary  Assembly  in  half 
the  departments  plus  one  objected  to  the  law,  otherwise  the 
law  would  stand.  This  constitution  never  became  operative. 
Counter  revolutions  within  the  state  at  Lyons,  in  La  Vendee 
and  at  other  places  and  war  with  foreign  powers  called  for 
the  utmost  vigor.  On  August  23  the  Convention  decreed  a 
levy  for  active  service  of  all  unmarried  citizens  and  childless 
widowers  from  eighteen  to  twenty-five  years  of  age,  and 
called  on  all  citizens  en  masse  to  aid  in  their  organization  and 
equipment.  On  August  15  Cambon  presented  a  plan,  which 
the  Convention  adopted,  for  the  consolidation  and  recording 
in  "The  Great  P)Ook"  the  items  of  the  public  debt,  to  bear 
five  per  cent  interest.  Under  the  monarchy  all  had  been 
confusion.     This  became  the  foundation  of  an  orderly  sys- 


FRANCE  629 

tern  of  public  finance.  On  June  26  Lakanal  presented  a  scheme 
for  the  primary  education  of  both  sexes,  and  on  October  26 
a  decree  for  the  estabhshment  of  schools  on  this  plan  was 
passed,  but  war  internal  and  external  and  lack  of  means  ren- 
dered it  impracticable  to  carry  the  decree  into  effect.  On 
August  I  the  Convention  adopted  the  metric  system  of  mea- 
surements and  weights.  The  Convention  also  in  this  time  of 
strife  within  and  without  proceeded  with  the  great  work 
started  by  the  Constituent  Assembly  of  collecting  into  a  single 
code  the  civil  law  of  France.  A  committee  of  five  was  ap- 
pointed and  allowed  three  months  to  make  its  report.  It 
brought  in  its  draft  at  the  end  of  the  first  month,  and  discus- 
sion on  it  went  on  at  sixty  sessions.  Here  the  substance  of 
that  great  work,  which  bears  the  name  of  Napoleon,  was 
given  form.  Its  materials  were  taken  from  the  ancient  Ro- 
man civil  law,  and  from  the  products  o,f  the  labors  of  the 
Constituent  Assembly  and  moulded  to  meet  the  views  of  the 
Convention.  Influenced  by  the  counter  revolution  at  Lyons, 
Marseilles  and  elsewhere,  and  greatly  exasperated  by  the 
treason  at  Toulon,  by  which  it  was  surrendered  with  all  its 
naval  and  military  stores  to  the  English,  Paris  was  again  in 
a  violent  ferment.  A  vote  carried  for  the  division  of  the 
revolutionary  tribunal  into  four  sections,  in  order  to  expedite 
its  work,  and  the  terrible  motto  "Let  the  reign  of  Terror  be 
the  order  of  the  day,"  was  seconded  by  a  decree  for  an  armed 
force  to  restrain  counter  revolutionists  and  protect  supplies. 
On  September  17  a  law  for  the  arrest  of  suspected  persons 
was  passed,  which  left  the  utmost  latitude  to  the  revolutionary 
committee  entrusted  with  its  execution.  The  only  condition 
imposed  was,  that  the  names  of  persons  arrested  should  be 
sent  to  the  Committee  of  Public  Safety.  The  killing  of  Marat 
by  Charlotte  Corday  tended  to  inflame  the  radicals.  On 
October  14  Marie  Antoinette  was  condemned  and  executed. 
Then  came  the  trial  of  the  Girondist  members  of  the  Con- 
vention, whose  arrest  had  been  ordered  on  the  third.  Twenty- 
one  of  them,  really  innocent  of  any  crime,  but  courageotis 
men,  who  opposed  the  wild  excesses  of  the  rabble,  were  con- 
demned and  executed.     This  however  was  not  the  light  in 


630  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

which  the  matter  was  then  viewed.  The  Girondists'  uprisings 
throughout  France  were  charged  against  them,  and  they  were 
sacrificed.  There  was  Httle  attention  to  forms  of  procedure 
or  evidence  of  guilt  by  the  revokitionary  tribunals,  which  now 
extended  their  work  over  I'Yance.  Vigorous  military  oper- 
ations were  carried  on  against  counter  revolutionists,  and 
before  the  end  of  1793  La  Vendee,  Lyons  and  Marseilles  were 
overpowered  and  Toulon  was  recovered  from  the  English. 
The  bloody  tribunal  followed,  wreaking  vengeance  on  those 
singled  but  for  punishment.  Trials  were  summary  and  exe- 
cution (juicklv  followed  condemnation.  Madame  Roland,  a 
most  brilliant  and  pure  minded  leader  of  the  revolution,  with 
many  others  of  the  best  people  of  France,  fell  a  victim  to  the 
fury  of  this  bloody  tribunal.  Yet,  while  all  this  terrible  work 
was  going  on  within,  France  was  triumphing  over  her  enemies 
without,  and  along  the  eastern  border  the  enemies  were  driven 
back.  Though  the  reign  of  terror  went  on,  after  the  end  of 
the  year  1793  the  baneful  power  of  the  Paris  Commune  was 
checked  by  requiring  the  committees  of  the  sections  to  report 
directly  to  the  Committee  of  General  Safety.  The  Committee 
of  Public  Welfare  was  placed  above  the  ministers  and  vested 
with  the  general  direction  of  the  government.  This  divided 
into  three  groups  of  three  each,  exercising  distinct  functions, 
and  being  composed  of  men  of  great  energy  gave  to  the  ad- 
ministration needed  vigor,  though  it  failed  to  protect  the  in- 
nocent. -The  year  1793  also  brought  to  view  the  man  who 
was  to  deluge  Europe  with  blood  and  be  the  central  figure  in 
its  history  for  many  years  to  come,  Napoleon.  On  June  10, 
1794,  in  order  to  expedite  the  work  of  executing  prisoners, 
on  motion  of  Robespierre  it  was  provided  that  witnesses 
against  the  accused  should  not  be  required,  if  other  means  of 
proof  existed.  The  pace  of  condemnation  v/as  greatly  acceler- 
ated. In  a  little  over  a  year  prior  to  that  time  1256  persons 
had  been  condemned.  In  six  weeks  thereafter  1361  suffered. 
Nowhere  else  has  bloody  retribution  overtaken  those  guilty  of 
bloody  deeds  with  such  promptness  and  certainty  as  during 
the  Reign  of  Terror.  On  July  28,  1794,  Robespierre,  Saint 
Just  and  Couthon,  who  three  days  before  had  felt  so  secure  in 


FRANCE  631 

the  control  of  affairs  as  to  call  the  other  members  of  the  com- 
mittee to  account,  were  condemned  and  executed  with  nine- 
teen others,  most  of  whom  had  taken  part  in  their  bloody 
work.  The  next  day  the  seventy  members  of  the  general 
council  of  the  Commune  of  Paris,  many  of  whom  were  guilty 
of  no  offense,  were  guillotined  en  masse.  The  commune  had 
clamored  for  blood,  and  its  leaders  and  the  Paris  mob  had 
often  menaced  the  convention  and  its  predecessors,  the  Con- 
stituent Assembly  and  the  Legislative  Assembly !  Following 
the  custom  of  the  times  there  was  in  this  instance  no  discrim- 
ination between  innocent  and  guilty.  After  the  suppression  of 
the  revolt  in  La  Vendee  there  had  been  great  slaughter  by 
order  of  the  revolutionaiy  tribunal.  Courier  and  others,  who 
had  directed  it,  were  brought  to  trial  and  he  and  others  exe- 
cuted.    Some  were  acquitted. 

On  Dec.  28,  1794,  the  Convention  changed  the  mode  of  pro- 
cedure before  the  revolutionary  tribunal  so  as  to  protect  the 
rights  of  the  accused  and  promote  justice.  The  Jacobin  club, 
which  had  done  so  much  to  promote  the  revolution  and  also 
the  reign  of  terror,  had  been  closed  by  order  of  the  Conven- 
tion a  few  days  before.  The  tremendous  energy  of  the  revo- 
lution was  not  manifested  merely  in  bloody  strife,  but  in  an 
intellectual  and  physical  activity  never  before  exhibited.  De- 
prived of  its  supplies  of  steel  and  saltpetre  from  foreign  ports 
by  war,  new  processes  were  invented,  steel  was  made  and  the 
cellars  of  Paris  were  made  to  yield  saltpetre  for  powder.  A 
system  of  signals  was  devised  by  which  communication  was 
had  almost  instantly  from  one  part  of  France  to  another.  A 
central  school  of  Public  Works  was  established,  which  after- 
wards  became  known  as  the  Polytechnic  School,  and  a  Normal 
School  to  teach  teachers,  together  with  other  institutes  for 
special  education.  On  Dec.  26,  1794,  a  commission  of  twenty- 
one  was  appointed  to  examine  into  the  conduct  of  ex-members 
of  the  Committees  of  Public  Works  and  General  Safety.  On 
March  2,  1795,  this  committee  reported  an  indictment  against 
Billaud,  Callot,  Barere  and  Vadier,  who  constituted  the  ultra 
revolutionary  faction  of  the  committee.  Their  arrest  was 
ordered  bv  the  Con\'entinn,  and  soon  thereafter  the  excluded 


6.32     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Girondists  were  recalled  to  seats  in  the  Convention.  Seventy- 
three  representatives,  held  on  suspicion,  were  restored  to  office, 
and  on  March  8,  twenty-two  Girondists,  who  had  been  out- 
lawed, were  recalled.  But  the  days  of  blood  and  arbitrary 
punishments  were  not  over.  Distrust  still  lurked  everywhere. 
Billaud,  Callot,  Barere  and  Vadier,  were  ordered  by  the  com- 
mittee to  be  transported  at  once  without  trial.  Fouquier-Tin- 
ville  the  prosecutor  who  had  prosecuted  to  their  deaths  so 
many  illustrious  men  and  women,  Hermann  the  president  of 
the  court,  and  the  judges  and  jurors  who  had  condemned 
them,  were  themselves  brought  to  trial,  but  not  in  that  sum- 
mary manner  to  which  they  had  resorted.  Forty  days  were 
consumed  in  the  trial.  Fouquirer-Tinville,  Hermann  and 
fourteen  others  were  condemned  to  death  and  guillotined  on 
May  7,  1795.  In  the  southeast,  at  Lyons,  Marseilles,  Toulon 
and  elsew^here  the  reaction  took  a  more  violent  form,  and 
there  was  much  slaughtering  of  those  who  were  charged  with 
participation  in  the  reign  of  terror.  After  this  there  were 
bread  riots,  due  mainly  to  the  scarcity  of  provisions,  and  some 
summary  executions,  but  the  general  sentiment  was  opposed 
to  further  bloodshed.  A  decree  was  passed  abolishing  the 
death  penalty  except  as  to  the  emigrants  and  for  forgers  of 
assignats,  but  civil  commotion  was  not  yet  at  an  end.  On 
]\Iav  16  a  treaty  of  alliance  was  entered  into  with  the  States 
of  Holland,  and  Belgium  was  annexed  to  France.  On  April  5 
peace  was  made  with  Prussia  and  on  July  22,  with  Spain. 
Liberal  principles  had  fought  the  battles  of  France  as  well  as 
her  armies  and,  despite  internal  troubles,  France  had  come 
out  of  the  struggle  with  the  allied  monarchs  greatly  increased 
in  territory  and  power.  England  and  Austria  alone  remained 
in  active  hostility,  and  but  for  the  treason  of  Pichegru  the 
Austrian  army  might  have  been  crushed. 

On  August  22  a  new  constitution  was  adopted  by  the  Con- 
vention, subject  to  the  peoples'  approval.  Frenchmen  above 
the  age  of  twenty-one,  who  paid  a  direct  tax,  or  who  had 
fought  for  the  Republic  through  one  campaign  or  would  give 
three  days'  labor  to  the  government,  were  made  citizens.  It 
contained  a  declaration  not  onlv  of  the  rights  but  the  moral 


FRANCE  633 

duties  of  man.  Primary  meetings  were  to  choose  one  elector 
for  every  two  hundred  citizens.  Electoral  assemblies  then 
elected  the  legislative  body,  tribunals  and  officers  of  the  de- 
partments. The  Legislature  was  divided  into  the  Council  of 
five  hundred,  who  initiated  all  laws,  and  council  of  two  hun- 
dred and  fifty  Ancients  forty  years  old  and  upwards,  who 
might  veto  proposed  laws;  one-third  to  be  elected  each  year, 
and  taken  from  each  department  in  ratio  of  population.  The 
executive  power  was  placed  in  a  Directory  of  five  members, 
chosen  by  the  Councils,  one  to  be  elected  each  year,  under 
whom  should  be  responsible  ministers.  Freedom  oi  the  press, 
of  commerce  and  industry  and  the  inviolability  of  the  home 
were  declared.  All  Frenchmen  who  had  abandoned  their 
country  were  forbidden  to  return,  and  their  goods  confiscated. 
It  was  estimated  that  more  than  30,000  royalists  had  left 
France.  Religious  toleration  was  decreed,  and  no  one  was  to 
be  compelled  to  contribute  to  religious  worship,  nor  was  any 
payment  to  be  made  therefor  by  the  government.  On  Sept. 
23,  1795,  this  constitution  was  ratified  by  a  majority  of  50,000. 
At  the  riots  of  Oct.  5,  1795,  largely  the  work  of  royalists  and 
reactionists,  Napoleon  came  to  the  front  as  a  leader  of  the 
forces  of  the  Convention  and  dispersed  the  mob.  On  Oct. 
26,  1795,  the  Convention,  which  had  for  a  little  more  than 
three  years  steered  the  ship  of  state  amid  mutiny  through 
stormy  seas,  passed  out  of  existence,  and  the  new  Legisla- 
ture came  into  power. 

The  new  directory  chosen  by  the  Legislature  was  La  Reveil- 
lere-Lepeaux,  Carnot,  Rewbell,  Barras  and  Letourneur.  The 
issuing  of  assignats  had  gone  on  till  they  were  almost  worth- 
less. A  new  issue  of  three  billions  priOduced  only  twenty 
millions.  Resort  was  had  to  the  payment  of  taxes  in  kind, 
and  in  this  manner  wheat  was  obtained  for  the  relief  of  Paris. 
Forty-five  billions  of  assignats  were  issued,  and  besides  the 
genuine  the  country  was  flooded  with  counterfeits.  The  fall- 
ing values  of  assignats,  given  forced  currency,  and  the  insta- 
bility of  all  values  gave  great  opportunities  to  the  speculators, 
resulting  as  usual  in  corresponding  suffering  among  the  poor. 
A  striking  illustration  of  the  reduced  pace  at  which  state  trials 


634  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

went  forward  was  in  that  oi  Babeiif,  who  had  instigated  an 
uprising  and  advocated  community  of  property,  which  began 
February  20,  1797,  lasted  three  months  and  resulted  in  his 
sentence  to  death  with  one  other  person.  Seven  others  were 
sentenced  to  transportation  and  the  rest  acquitted.  The  reign 
of  terror  had  passed  away,  in  1796  the  civil  war  in  the  Vendee 
came  to  an  end,  and  Bonaparte  led  the  army  in  Italy.  Much 
blood  had  been  shed  by  order  of  the  revolutionary  convention, 
but  the  numbers  who  had  suffered  were  altogether  insignifi- 
cant as  compared  with  those  who  fell  in  the  bloody  wars  waged 
by  Napoleon.  Members  of  the  Convention  gave  up  their  lives 
as  sacrifices  to  the  good  of  France,  but  for  each  one  of  these 
many  thousands  fell  in  battle.  The  civilized  world  has  never 
ceased  to  condemn  the  excesses  of  the  revolution,  but  it  still 
applauds  the  wholly  indefensible  butcheries  of  war.  Much  of 
the  bloody  work  of  the  reign  of  terror  resulted  from  too  in- 
tense devotion  to  the  cause  of  liberty.  Distrust  followed  the 
overthrow  of  the  monarchy,  which  had  ripened  and  rotted 
through  so  many  centuries.  If  moderation  of  language  could 
have  been  maintained,  much  crime  would  have  been  avoided. 
Intemperate  demands  for  the  blood  of  opponents  and  counter 
threats  caused  blood  to  flow  when  popular  tumults  occurred. 
Never  was  there  a  time  when  intemperate  words  led  to  bloody 
deeds  so  quickly  and  frequently.  But  the  heroic  work  of  those 
who  braved  death  at  the  guillotine  gave  an  impulse  to  govern- 
mental reform  which  can  hardly  be  measured.  The  peculiar 
sadness  of  these  executions  is  augmented  by  the  nobility  of 
soul  displayed  by  so  many  of  the  victims.  The  Girondists  and 
Madame  Roland  gained  a  pure  fame,  which  will  grow  in  lustre 
as  true  liberty  spreads  its  light  over  the  world.  Even  Danton, 
Robespierre  and  Saint  Just  were  sincere  republicans.  The 
great  lesson  of  the  reign  of  terror  is,  that  in  times  of  great 
excitement  intemperate  language  is  as  dangerous  as  sparks  in 
a  powder  house,  and  that  those  who  unjustly  take  the  lives 
of  others  may  expect  that  retributive  justice  will  soon  return 
upon  their  necks  the  unmerited  strokes  which  have  destroved 
others.  Compared  with  blood  spilled  in  the  many  causeless 
wars  waged  by  the  kings  to  gratify  their  mere  personal  pride 


FRANCE  635 

or  ambition,  all  the  blood  spilled  by  the  revolutionary  tribunals 
was  as  a  drop  in  a  great  tub  full.  But  the  blood  of  the  revolu- 
tion was  to  water  a  plant  of  incalculable  value  to  mankind, 
while  that  spilled  at  the  command  of  the  kings  was  not  only 
to  no  good  purpose,  but  passed  a  legacy  of  oppression  and 
hatred  down  from  generation  to  generation.  Europe  and 
America  claim  to  believe  and  follow  the  teachings  of  Christ, 
yet  the  savage  Mars,  the  war  God  of  ancient  Greece  and  Rome, 
still  holds  sway.  Kings  and  states  still  send  their  men  forth 
to  do  wholesale  murder  to  gratify  the  pride  and  ambition  of 
kings  and  rulers,  and  when  great  battles  are  fought  and  many 
thousands  meet  death,  and  many  more  thousands  live  in  the 
agony  of  mutilation,  the  multitude  applauds  and  the  fierce 
4eaders  become  worshipped  as  heroes.  France  achieved  her 
true  and  great  glory  through  her  three  great  assemblies  and 
during  the  time  of  her  bloody  travail.  Napoleon  led  her 
back  into  the  old  train  of  Mars  and  watered  the  fields  of 
Europe  with  innocent  blood.  For  this  rulers  of  England  and 
Austria  especially  must  share  the  blame,  and  of  Prussia,  Spain 
and  Russia  also  a  part.  Napoleon  sought,  not  liberty  or  the 
happiness  of  the  people  of  France,  but  that  false  phantom, 
glory,  which  leads  so  many  to  the  grave  over  a  path  smoking 
with  pestilential  fumes  of  war  and  reeking  with  the  corrup- 
tion and  miseries  it  engenders.  Europe  has  neither  accepted 
the  rich  fruits  of  the  deliberations  of  the  patriots  of  thai 
memorable  period,  nor  ceased  to  worship  Mars,  Woden  and 
Thor.  These  are  still  the  gods  of  the  palaces  and  many  of 
the  homes  of  the  most  advanced  nations  of  Europe,  in  fact 
though  not  in  name.  The  time  of  intense  activity  of  the  pure 
republican  sentiment  ended  with  the  Convention.  The  new 
legislative  chambers  were  largely  reactionary.  With  the  ex- 
ception of  Carnot,  that  most  able  and  worthy  patriot,  the 
Directory  was  made  up  of  poor  or  bad  material.  Napoleon 
was  already  plotting  to  gain  arbitrary  power,  though  pro- 
fessing the  most  profound  devotion  to  republican  principles. 
He  sent  his  emissaries  to  Paris  to  further  his  ends.  The 
army  was  rapidly  becoming  the  ruling  force  of  the  state. 
The  clubs,  which  had  wielded  such  vast  influence,  had  lost 


6.36     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

their  hold  on  the  people,  and  the  most  powerful  ones  had 
been  closed  and  dispersed.  The  treason  of  Pichegru,  which 
had  come  to  light,  was  made  a  pretext  by  Barras,  La  Reveil- 
lere  and  Rewbell  for  a  coup  d'etat.  On  Aug.  i8,  1797,  the 
Directory  addressed  a  message  to  the  Five  Hundred,  calling 
attention  to  plots  and  violations  of  the  constitution.  It  was 
referred  to  a  special  committee  to  direct  prosecutions  against 
all  plotters  against  the  constitution  and  soldiers  holding  politi- 
cal councils.  On  the  night  of  September  3  the  Tuileries 
was  surrounded  by  12,000  soldiers  with  forty  cannon.  The 
assembly  was  prevented  from  holding  a  session  the  next  day, 
and  Barthelemi,  one  of  the  Directory  opposed  to  the  coup, 
was  arrested,  while  Carnot  escaped  and  fled  to  Switzerland. 
Thirty  members  of  the  Council  of  Ancients  attempted  to  hold 
a  session  at  the  house  of  their  president  and  were  arrested 
and  imprisoned  in  the  Temple.  Eighty-five  of  the  Five  Hun- 
dred, holding  a  session  near  by,  were  dispersed  and  many  of 
them  arrested.  A  session  of  those  members  of  the  councils 
favorable  to  the  three  Directors,  the  Triumvirs,  was  then  held. 
A  resolution  in  thirty-nine  articles  was  voted,  annulling  the 
elections  in  fifty-one  departments  as  being  falsified  by  royalist 
emissaries,  thus  destroying  the  opposing  majority.  The  po- 
litical rights  which  had  been  restored  to  the  relations  of  emi- 
grants were  taken  from  them.  Forty-two  members  of  the 
Five  Hundred  and  eleven  of  the  Ancients  w^ere  ordered  to  be 
transported  with  Carnot,  Barthelemi  and  other  prominent 
men,  including  Pichegru.  The  law  recalling  transported 
priests  was  repealed  and  all  newspapers  were  placed  under 
police  inspection.  The  law  against  clubs  was  repealed,  though 
they  were  forbidden  to  attack  the  constitution.  These  reso- 
lutions were  first  passed  by  the  Five  Hundred  and  then  by  the 
Ancients  on  September  6.  The  directory  was  filled  by 
adding  Merlin  and  Frangois.  On  October  17  Napoleon 
concluded  a  treaty  of  peace  with  Austria,  contrary  to  the  in- 
structions of  the  Directory,  but  which  they  ratified.  This 
left  England  as  the  only  country  with  which  war  still  con- 
tinued. The  Directory  made  Napoleon  commander-in-chief 
of  the  army  of  England,  and  he  came  to  Paris,  where  he 


FRANCE  637 

affected  modesty  and   was  accorded  great  distinction.      His 
next  project  was  the  invasion  of  Egypt. 

When  the  elections  of  1798  were  held,  the  Directory  again 
interposed  to  maintain  their  ascendency  in  the  Councils  and 
annulled  such  of  the  elections  as  they  deemed  most  unfavora- 
ble. Treilhord  succeeded  Frangois  on  the  Directory.  While 
Napoleon  was  prosecuting  his  war  in  Egypt,  public  senti- 
ment in  France  grew  hostile  to  the  Directory,  and  the  elections 
of  1799  were  carried  by  the  reactionists.  Sieyes  succeeded 
Rewbell  in  the  Directory.  The  newly  elected  one-third  of  the 
Councils  infused  life  and  independence  into  them.  Liberty 
of  the  press  and  of  assemblage  and  free  elections  were  order- 
ed. Conscriptions  were  ordered  and  a  forced  loan  of  one 
hundred  millions  from  the  well-to-do  classes.  War  was  re- 
newed and  went  on  in  Italy,  Switzerland  and  the  low  coun- 
tries against  the  forces  of  Austria,  England  and  Russia,  as 
well  as  in  Egypt,  with  varying  success.  Napoleon  left  his 
army  in  Egypt  and  arrived  in  Paris  Oct.  25,  1799,  where  he 
at  once  commenced  to  plot  to  overthrow  the  Directory  and 
assume  dictatorial  power,  backed  by  his  military  followers. 
The  pretext  of  a  Jacobin  plot  was  invented.  A  decree  of  the 
Council  of  Ancients  removing  the  session  to  St.  Cloud  was 
obtained,  and  Bonaparte  was  commissioned  to  command  the 
military  forces  and  execute  the  decree.  The  Council  of  Five 
Hundred  met  four  hours  later  and  were  disinclined  to  go  to 
St.  Cloud,  but  Lucien  Bonaparte,  the  president,  ruled  that  the 
matter  could  not  be  discussed  till  next  day.  Three  of  the 
Directory  resigned.  Gohier  and  Moulin,  the  remaining  di- 
rectors, who  remained  steadfast  in  support  of  the  constitution, 
were  kept  confined  in  the  directoral  residence  in  Luxembourg 
by  troops  under  Moreau,  who  followed  Napoleon.  The  lead- 
ers of  the  Councils  met  at  night  with  Napoleon  and  Sieyes, 
when  Nopoleon  declared  that  the  constitution  must  be  changed 
and  a  temporary  dictatorship  established.  There  was  also  a 
meeting  of  representatives  opposed  to  his  schemes  to  devise 
means  of  resistance.  Nov.  10,  1799,  the  two  councils  met  at 
St.  Cloud.  A  letter  from  the  secretary  general  of  the  Direc- 
tory was  read  announcing  the  resignation  of  four  directors, 


638  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

though  neither  Gohier  or  Mouhns  had  resigned.  Napoleon 
appeared  in  the  Council  of  the  Ancients  and  made  a  speech, 
in  which  he  talked  of  liberty  and  equality,  while  he  demanded 
the  dictatorship.  He  then  went  to  the  Five  Hundred  and  en- 
tered, escorted  by  some  of  the  legislative  guard.  Being  met  by 
protests  at  the  appearance  of  swords  and  bayonets  in  the 
Council,  he  was  taken  from  the  hall  by  General  Lefevre  and 
the  soldiers.  Then  Lucien  Bonaparte  went  out  and  addressed 
the  troops  as  president  of  the  Council  in  the  interest  of  his 
brother,  after  which  Murat  led  in  the  genadiers,  who  drove 
the  representatives  from  the  hall.  At  nine  that  night  Lucien 
assembled  thirty  of  the  members  of  the  Five  Hundred,  who 
assumed  to  be  a  quorum  and  approved  the  course  taken  by 
Napoleon  and  the  troops.  Three  consuls  were  nominated, 
Napoleon,  Sieyes  and  Roger-Ducos.  All  swore  to  support  the 
republic.  Two  commissions  to  assist  the  consuls  in  changing 
the  constitution  were  chosen,  and  the  exclusion  of  fifty-seven 
of  the  representatives  and  an  adjournment  of  the  Councils 
for  three  months  was  ordered.  This  order  was  ratified  by  the 
Ancients.  The  new  consuls  professed  devotion  to  the  republic 
and  to  liberty.  Napoleon  was  po])ularly  looked  on  as  a  Wash- 
ington, but  at  best  he  was  one  of  the  coldest  of  military  des- 
pots. The  adoration  of  the  multitude  was  mainly  based  on 
the  ancient  worship  of  the  war  god,  as  whose  representative 
Napoleon  was  acknowledged  and  glorified.  The  decree  which 
formed  the  provisional  consulate  invested  them  with  full 
power  and  charged  them  to  restore  order  and  peace.  Two 
commissions  of  twenty-five  members  each  took  the  place  of 
the  Councils,  and  their  powers  were  to  continue  three  Months 
till  the  Councils  should  meet  again.  Napoleon's  great  strength 
lay  in  his  judgment  of  the  capacities  of  men  and  in  his  ability 
to  have  them  carry  out  his  will.  He  at  once  selected  as  his 
principal  ministers  three  men  of  great  executive  ability.  Tal- 
leyrand for  foreign  affairs,  Berthier  for  war  and  Gaudin  for 
finance.  Many  political  prisoners  were  released,  but  the  sale 
of  the  goods  of  the  emigrants  was  confirmed.  On  November 
1 6  a  harsh  measure  was  adopted,  by  which  thirty-seven  citi- 
zens were  arbitrarilv  transported  and  twenty  imprisoned  on 


FRANCE  639 

the  Isle  de  Ri.  Some  were  guilty  of  bloody  crimes,  but  others 
only  of  having  opposed  Napoleon's  usurpation  of  power.  On 
Dec.  15,  1799,  the  new  constitution,  mainly  the  work  of  Sieyes, 
was  made  public.  It  placed  the  executive  power  in  three  con- 
suls, to  hold  for  ten  years,  and  eligible  to  reelection.  Of  these 
the  first  alone  could  promulgate  laws,  appoint  ministers,  am- 
bassadors, and  officers  generally.  The  second  and  third  con- 
suls could  consult  with,  but  not  control  the  action  of,  the  first. 
500,000  electors  chosen  by  universal  suffrage  elected  50,000 
persons,  who  in  turn  chose  5,000  names  from  which  a  senate 
made  up  of  eighty  life  members  chose  the  consuls,  tribunes 
and  legislature.  The  legislative  body  was  composed  of  three 
hundred  members.  A  council  of  state  was  charged  with  draft- 
ing laws,  its  members  to  be  named  by  the  first  consul.  The 
laws  thus  formed  were  to  be  presented  to  a  tribunate  of  one 
hundred  members,  which  after  discussion  was  to  pass  them  on 
in  the  hands  of  three  orators,  who  should  discuss  them  against 
three  councillors  of  state,  nominated  by  the  consuls,  in  the 
presence  of  the  legislature,  which  should  then  adopt  or  reject 
the  proposed  laws  by  secret  ballot  without  debate.  Vacancies 
in  the  senate  were  filled  by  the  senate  from  a  list  of  three 
candidates  ;for  each  vacancy  furnished  one  each  by  the  legis- 
lature, the  tribunate  and  first  consul.  The  senate  had  power 
to  veto  any  law  or  governmental  act  it  deemed  unconstitu- 
tional. Municipal  officers  were  to  be  taken  from  the  first  list 
of  500,000  electors,  departmental  from  the  second  of  50,000 
and  national  from  the  third.  There  was  no  declaration  of 
the  rights  of  man  and  no  guaranty  of  liberty  of  the  press. 
Personal  liberty  only  was  assured.  The  new  constitution  was 
adopted  by  a  large,  almost  unanimous,  vote.  Napoleon,  Cam- 
baceres  and  Lebrun  were  chosen  consuls.  The  legislative  ses- 
sion of  the  new  government  was  opened  Jan.  3.  1800.  A  law 
was  passed  abolishing  the  cantonal  municipalities  and  substi- 
tuting larger  units  called  arrondissements.  Officers  were  ap- 
pointed by  the  government  instead  of  chosen  by  the  people. 
Over  the  departments  prefects  were  appointed  and  subprefects 
over  the  arrondissements,  and  the  commune  had  a  mayor 
named  by  the  prefect.     Corresponding  changes  were  made  in 


640  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  judicial  system,  and  jurors  were  named  by  the  prefects. 
All  judicial  officers  except  justices  of  the  peace  were  appoint- 
ed. Under  this  system  France  was  again  ruled  by  one  head. 
On  Feb.  9,  1801,  peace  was  made  with  Austria.  July  16,  1801 
a  concordat  with  the  Pope  reestablished  the  Catholic  as  the 
religion  of  state  in  France,  and  on  March  25,  1802,  a  treaty  of 
peace  was  concluded  with  England.  The  emigrants,  of  whom 
there  were  said  to  have  been  145,000,  were  allowed  to  return 
and  restored  to  such  of  their  property  as  had  not  been  sold. 
The  educational  scheme  of  the  Convention  was  replaced  by 
another,  which  failed  to  give  general  primary  education,  but 
did  provide  military  schools.  By  vote  of  the  people  Napo- 
leon's term  of  office  was  extended  for  the  term  of  his  life. 
La  Fayette,  who  after  long  confinement  in  Austrian  prisons 
had  finally  returned  to  France,  voted  no,  but  very  few  others 
had  the  courage  to  do  so.  There  was  a  brief  period  of  peace 
and  prosperity,  which  unfortunately  soon  came  to  an  end 
through  the  fault  of  bad  rulers  in  France  and  England.  In 
1803  that  long  and  fearful  war  commenced,  which  was  to 
cause  such  frightful  sufferings  and  loss  of  life.  The  year  1S04 
witnessed  the  completion  of  the  Code,  which  bears  the  name  of 
Napoleon,  and  for  which  he  claimed  the  credit,  but  it  was  of 
course  mainly  the  work  of  lawyers,  and  most  of  the  material 
for  it  had  been  prepared  by  the  Convention.  (A  summary  of 
the  provisions  of  this  Code  with  its  modifications  contained  in 
the  Civil  Code  of  France  will  be  found  in  the  Appendix.) 
This  great  work  became  a  model  followed  by  neighboring 
states  in  the  codification  of  their  laws,  and  presents  system- 
atically arranged  and  concisely  stated  the  civil  law  of  France. 
On  May  18,  1804,  Napoleon,  having  obtained  the  sanction  of 
the  Senate,  was  proclaimed  Emperor  with  succession  in  his 
heirs,  a  civil  list  of  25,000,000  and  the  use  of  the  royal  palaces 
and  estates.  With  the  advent  of  Napoleon  to  power  the  in- 
ternal struggles  of  parties,  clubs  and  factions  soon  came  to  an 
end.  He  introduced  order  and  system  and  carried  on  useful 
public  works.  Tn  the  collection  of  the  revenue  there  was  thor- 
oughness and  in  its  expenditure  economy.  Restored  order  and 
prosperit\-  were  placed  to  his  credit  and  i^ladly  accepted.     But 


FRANCE  641 

this  gain  was  at  the  expense  of  a  niiHtary  desjxjtism,  in  which 
the  blood  and  treasnre,  the  peace  and  happiness  of  a  great  na- 
tion weighed  as  nothing  against  the  ambition  and  the  criminal 
folly  of  a  single  heartless  despot.  Thenceforth  the  yonng  men 
of  France  were  called  from  their  homes  to  be  sacrificed  to  the 
tierce  war  god,  whose  high  priest  was  Napoleon.  Despotism 
in  France  and  despotism  in  England,  Austria,  Prussia,  Spain 
and  Russia  must  be  charged  with  the  lives  of  the  millions  who 
were  slain  in  the  long  struggle,  which  deluged  Europe  with 
blood  till  Napoleon's  fall  at  Waterloo. 

With  these  long  and  fearful  wars  and  the  bloody  battles 
which  gave  Napoleon  such  renown  as  a  military  commander 
we  have  nothing  to  do,  save  to  call  attention  to  the  frightful 
suffering  they  caused  and  the  needlessness  of  them  all.  Never 
was  there  a  more  wanton  crime  committed  against  a  people 
who  had  confided  their  destines  to  a  ruler  than  that  of  Na- 
poleon in  leading  a  FVench  army  into  Russia  in  1812  to  perish 
without  a  cause.  The  hundreds  of  thousands  of  lives,  sacri- 
liced  in  battle  or  to  the  rigors  of  a  severe  northern  winter,  were 
oft'erings  to  the  war  god  and  chargeable  to  Napoleon.  From 
this  time  on  disasters  multiplied,  and  by  the  winter  of  T814 
F>ance  was  literally  drained  of  young  men  capable  of  mili- 
tary service,  and  the  vast  accumulation  of  arms  and  military 
stores,  which  had  been  provided  with  so  much  care,  was  in  the 
hands  of  the  enemy  in  Italy  and  Germany.  Never  in  all  the 
history  of  France  was  there  a  stronger  illustration  of  the 
folly  of  entrusting  the  power  to  make  war  to  a  single  man. 
Never  did  a  despot  live  who  cared  less  for  human  life  or 
human  happiness  than  Napoleon.  His  mad  desire  for  military 
glory  and  conquest  dominated  every  act  and  doomed  to  an 
untimely  death  most  of  a  generation  of  brave  men.  So  long 
as  the  young  are  taught  to  admire  and  emulate  the  conduct  of 
such  human  monsters,  and  to  look  on  war  as  the  avenue 
through  which  fame  and  glory  must  be  sought,  so  long  will 
humanity  suffer  the  horrors  and  nn'series  of  needless  wars. 
When  nuu-dering  by  wholesale  shall  be  viewed  in  its  true  light, 
as  jjrivate  murder  now  is,  and  when  the  duels  of  nations  shall 
be  weighed   as   private   duels   are,   the  world   ma\-   breathe   a 


642  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

purer  air  and  the  worship  of  Mars  give  way  to  the  spirit  of 
genuine  Christianity. 

Exhausted  France  could  oppose  no  elfectual  resistance  to 
the  alhed  powers,  who,  profiting  by  the  lesson  so  often  taught 
by  Napoleon  that  time  is  of  prime  importance  in  military 
movements,  pushed  steadily  forward  without  allowing  time 
to  Napoleon  to  concentrate  the  scattered  remnants  of  his 
forces  or  to  organize  and  equip  the  few  new  recruits  France 
yet  could  furnish.  On  March  31,  1814,  the  allies  entered 
Paris.  They  demanded  the  overthrow  of  Napoleon,  On 
April  2nd  the  remnant  of  the  Senate  decreed  the  deposition  of 
Napoleon  and  his  family ;  on  the  next  day  the  legislative  body 
confirmed  the  decree,  and  on  the  6th  Napoleon  abdicated.  The 
allies  allowed  him  to  retain  the  title  of  Emperor  with  the 
island  of  Elba  as  his  empire,  and  his  wife  Marie  Louise  of 
Austria  was  given  the  duchy  of  Parma.  Ample  pensions  were 
allowed  to  him  and  the  members  of  his  family.  A  new  con- 
stitution was  formed,  afterward  modified,  and  Louis  XVIII 
was  made  king.  The  executive  power  and  the  initiative  of  all 
laws  was  conferred  on  the  king.  The  peerage  was  restored, 
a  house  of  lords  taking  the  place  of  the  Senate,  with  unlimited 
power  of  appointment  in  the  king.  The  legislative  power  was 
confided  to  the  King,  Senate  and  Chamber  of  Deputies.  The 
Constitution  sanctioned  individual  liberty,  freedom  of  wor- 
ship and  of  the  press,  confirmed  the  sale  of  national  property, 
the  public  debt,  and  accorded  amnesty  for  acts  committed  dur- 
ing the  revolution.  The  senate  was  to  be  composed  of  not 
less  than  one  hundred  and  fifty  nor  more  than  two  hundred 
members,  chosen  by  the  King,  but  one  hundred  of  the  senators 
then  in  of!ice  were  to  be  continued.  The  Catholic  was  retained 
as  the  religion  of  state.  The  right  of  suffrage  was  greatly 
restricted.  Electors  were  required  to  be  thirty  years  old  and 
pay  an  indirect  tax  of  three  hundred  francs.  Deputies  were 
to  be  elected  for  five  years  and  one-fifth  renewed  each  year. 
The  right  to  make  war  and  peace  was  vested  in  the  king,  with 
that  of  making  all  arrangements  necessary  for  the  execution 
of  the  laws  and  the  safety  of  the  state.  A  responsible  minis- 
trv  was  established.     Conscriptions  were  to  be  regulated  by 


FRANCE  643 

law.  The  Constitution  was  dated  from  the  nineteenth  year  of 
the  reign  of  Louis  XVIIl,  as  if  the  repubhc  and  empire  had 
never  existed,  and  was  called  the  Constitutional  Charter,  as  if 
granted  by  grace  of  the  king.  The  Charter  was  proclaimed 
June  4,  and  eighty-three  senators  and  forty  dukes  from  the 
nobility  of  the  old  regime  were  made  members  of  the  new 
house  of  peers.  The  rule  of  the  Bourbons,  which  again  placed 
in  authority  those  who  had  so  long  been  the  enemies  oi 
France,  though  at  first  accepted  with  hope,  because  of  the  in- 
tense longing  of  the  people  for  peace  and  security,  soon  pro- 
duced irritation  everywhere.  The  King  and  his  followers  were 
wanting  both  in  moral  purposes  and  in  business  capacity.  The 
treaty  of  Paris,  which  diminished  the  territory  of  France,  was 
a  source  of  national  humiliation.  Discontent  grew,  and  Na- 
poleon, learning  the  situation,  set  sail  on  Feb.  26,  181 5,  with 
about  1,100  soldiers  and  landed  near  Cannes  on  March  i. 
He  was  received  everywhere  with  enthusiasm,  the  soldiers 
sent  to  oppose  him  deserting  the  Bourbons  and  joining  his 
little  army.  On  March  19  he  reached  Fontainbleau,  and  the 
Bourbons  fled.  On  the  20th  he  entered  Paris  and  took  pos- 
session of  the  Tuileries.  Again  the  Constitution  was  changed, 
Napoleon  seeking  the  aid  of  the  republican  sentiment.  It  was 
in  main  the  Charter  of  Louis  XVIII,  the  principal  change  be- 
ing in  the  lower  house,  which  was  called  House  of  Represen- 
tatives, and  in  the  mode  of  election.  Primary  meetings  were 
to  nominate  for  universal  suffrage  100,000  electors  for  life, 
forming  two  classes,  one  of  the  departments  and  the  other 
of  the  districts,  each  of  which  were  to  elect  representatives  at 
least  thirty  years  of  age.  The  peerage  was  declared  heredi- 
tary. This  constitution,  called  the  supplementary  act,  was 
ratified  by  the  people.  The  two  chambers  met  on  June  3  and 
Napoleon  set  out  on  June  20  to  be  defeated  at  Waterloo. 
The  representatives  of  the  people  again  had  to  face  the  situa- 
tion of  submission  to  foreign  powers.  In  the  Chamber  of 
Representatives  Lucien  Bonaparte  strove  to  maintain  Napol- 
eon in  power.  To  his  appeal  La  Fayette  answered :  "Prince, 
you  slander  the  nation.  It  is  not  for  forsaking  Napoleon  that 
history  will  blame  France,  but  ifor  following  him  so  long. 


644  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

She  followed  him  in  the  Egyptian  sands  and  the  Russian  des- 
erts, on  fifty  fields  of  battle,  in  reverses  as  in  his  triumphs. 
Fidelity  too  long-  continued  has  cost  France  three  million 
men!"  The  net  result  of  all  this  enormous  sacrifice  was,  that 
exhausted  France  lay  at  the  mercy  of  its  many  foes,  some  or 
all  of  whom  might  have  been  friends  if  Napoleon  had  striven 
for  peace  with  half  the  zeal  he  prosecuted  war.  Napoleon 
again  abdicated,  proclaiming  his  son  emperor.  On  July  4  the 
representatives  signed  the  capitulation,  turning  the  destinies 
of  France  over  to  the  allies,  but  on  the  same  day  a  declaration 
of  rights  was  presented  to  the  House  which  was  adopted  on 
the  next.  On  July  7  Prussians  and  English  took  possession  of 
Paris  and  Louis  XVIII  entered  it  the  next  day.  The  inunda- 
tion of  foreign  soldiers,  who  pillaged  and  preyed  on  France, 
was  overwhelming,  amounting  to  as  high  as  1,240,000  men. 
The  French  army  was  disbanded  and  disorder,  pillaging,  mur- 
der and  excesses  of  all  sorts  prevailed  over  the  country.  On 
July  15  Napoleon  surrendered  to  the  English  and  went  to 
Plymouth,  expecting  to  be  allowed  to  live  in  retirement,  but 
he  was  sent  Aug.  8  to  St.  Helena  as  a  captive.  The  elections 
in  181 5  were  carried  by  the  royaHsts,  and  a  law  was  passed 
creating  special  courts  for  the  trial  of  political  offenders.  The 
peerage  was  reconstructed  by  the  addition  of  one  hundred 
and  ninety-four  peers,  declared  hereditary.  Louis  reigned 
as  a  constitutional  monarch  in  comparative  peace.  In  18 19 
the  electoral  laws  were  revised  so  as  to  require  the  election  of 
all  the  deputies  once  in  seven  years,  instead  of  a  portion  each 
year,  and  increasing  the  number.  The  policy  of  a  protective 
tariff  on  foreign  goods  was  adopted,  and  with  peace  and  in- 
dustry France  advanced  in  prosperity.  The  many-sided  civ- 
ilization, contributed  to  by  the  millions  of  people,  moved 
forward.  Political  parties  developed,  but  there  were  no  great 
outbreaks  causing  bloodshed.  Louis  XVIII  passed  away  on 
Sept.  16,  1824,  and  Charles  X  took  his  place.  The  rule  of 
Louis  XVIII  was  not  that  of  a  Bourbon  despot,  but  of  a 
constitutional  monarch,  governed  in  great  measure  by  the 
principles  developed  by  the  revolution.  Charles  observed  the 
restrictions  on  his  power  imposed  by  the  charter  in  the  main 


FRANCE  645 

until  1829,  when  he  named  a  very  obnoxious  ministry.  On 
July  25  four  ordinances  were  signed  by  the  king  and  counter- 
signed by  the  ministers,  the  first  suspended  the  freedom  of  the 
press,  the  second  dissolved  the  Chamber  of  Deputies,  the 
third  reduced  the  number  of  deputies  and  altered  the  electoral 
la\v,  and  the  fourth  convened  the  new  electoral  college  on 
Sept.  6  and  13.  When  these  arbitrary  acts  became  known 
Paris  was  again  in  a  ferment.  On  July  28  the  streets  were 
barricaded,  the  tocsin  was  sounded  and  all  Paris  rose  to  resist 
the  king's  usurpation  of  authority.  There  was  fighting  in  the 
streets  between  the  troops  and  the  citizens,  but  many  of  the 
soldiers  were  disposed  to  side  with  the  people.  Though  5300 
persons  were  killed  or  wounded  in  the  fight,  there  were  no 
exhibitions  of  such  barbarity  and  bloodthirstiness  as  in  the 
revolution  of  1789.  The  people  realized  that  the  soldiers 
fought  irom  a  sense  of  duty,  and  the  soldiers  really  felt  in 
sympathy  with  the  people.  On  the  29th  two  regiments  went 
over  and  joined  them.  The  king  was  without  efficient  support 
and  left  the  city.  La  Fayette,  that  grand  character,  who  had 
taken  part  in  the  stormy  scenes  of  the  American  Revolution 
and  of  1789,  again  came  to  the  front  in  command  of  the 
national  guard  of  France.  The  King  abdicated  and  left 
France  on  Aug.  3,  1830.  On  the  same  day  the  Legislature 
convened,  two  hundred  and  forty  deputies  and  sixty  peers  be- 
ing present.  The  Constitution  was  again  changed,  the  Cath- 
olic religion  ceased  to  be  recognized  as  the  religion  of  state, 
censorship  of  the  press  was  abolished  and  its  inviolability  es- 
tablished, commissions  and  extraordinary  courts  for  the  trial 
of  offenders  were  prohibited,  the  tricolored  standard  was 
resumed,  the  age  of  deputies  was  fixed  at  thirty  to  serve  five 
years,  hereditary  peerage  and  all  peerages  created  by  Charles 
X  were  abolished.  The  throne  was  declared  vacant  and  the 
Duke  of  Orleans  was  chosen  king,  on  condition  of  acceptance 
of  the  amended  Charter.  Though  there  was  much  republican 
sentiment,  many  ardent  republicans  like  La  Fayette  deemed  it 
wisest  to  choose  a  king.  Louis  Philippe  came  to  the  throne 
as  a  citizen  king.  The  difference  between  his  case  and  that 
of  ancient  monarchs  was  expressed  by  M.  Thiers,  who  took 


646  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

part  in  this  revolution,  in  the  words,  "The  king  reigns,  he  does 
not  govern."  Louis  PhiHppe  was  not  content  however  to 
merely  reign,  he  sought  also  to  govern.  On  June  5,  1832,  there 
was  an  outbreak  in  Paris  which  assumed  considerable  propor- 
tions and  seemed  formidable,  but  on  the  next  day  it  was  sup- 
pressed. Many  of  those  implicated  were  arrested  and  tried. 
Some  were  sentenced  and  others  acquitted,  but  there  were  no 
executions,  thus  showing  a  marked  advance  from  the  bloody 
days.  Though  Louis  Philippe  was  charged  with  weakness  in 
his  foreign  policy,  he  avoided  disastrous  foreign  wars,  and 
France  prospered  in  peace.  His  reign  witnessed  the  introduc- 
tion of  the  railroad  and  telegraph  and  marked  advance  in 
manufactures  and  commerce.  Though  there  were  many  at- 
tempts to  take  the  King's  life,  he  always  exhibited  courage 
when  attacked  and  clemency  toward  those  implicated.  Noth- 
ing more  surely  proves  the  advancing  moral  tone  of  the  people 
than  the  improved  administration  of  justice.  Trials  no  longer 
meant  mere  formal  procedure  preliminary  to  bloody  execu- 
tions, but  there  was  a  decided  leaning  toward  clemency,  and 
even  those  guilty  of  political  offenses  were  sometimes  acquit- 
ted. The  King  no  longer  used  the  courts  as  tools  for  the  exe- 
cution of  his  arbitrary  will.  The  public  were  becoming  ac- 
customed to  submit  to  law  and  reject  claims  to  arbitrary  power. 
On  Feb.  24,  1848,  as  a  result  of  an  order  prohibiting  the 
holding  of  a  banquet,  all  Paris  rose  against  Philippe,  who  in 
the  morning  believed  himself  secure,  yet  abdicated  at  noon  in 
favor  of  his  grandson.  Barricades  were  thrown  up  all  over 
the  city.  The  national  guard,  when  summoned,  sided  with 
the  people,  and  the  regular  troops,  though  numerous,  were 
not  able  to  contend  with  the  mob.  Public  sentiment  was  so 
strong  against  the  king  and  his  ministers  that  a  revolution 
was  effected  wi^^^h  very  little  bloodshed.  A  provisional  govern- 
ment was  formed  by  naming  a  new  ministry,  the  Chambers 
were  dissolved  and  an  election  ordered  to  choose  a  new  Na- 
tional Assembly.  The  ministry  were  confronted  with  con- 
ditions urgently  demanding  relief.  Great  numbers  of  laborers 
were  unemployed  and  in  want.  They  looked  to  the  state  to 
afford  them  relief.     On  Februarv  2^  a  workman  rushed  into 


FRANCE  647 

the  council  chamber  with  a  petition  crying  for,  "the  right  to 
labor  in  an  hour."  "Such  is  tlie  will  of  the  people."  This  was 
not  a  very  disorderly  demand,  though  difficult  to  comply  with 
on  a  large  scale  under  such  circumstances.  The  election  for 
members  of  the  National  Assembly  was  finally  fixed  for  April 
23,  and  nine  hundred  representatives  were  to  be  chosen  by 
departments  and  to  receive  twenty-five  francs  per  day.  All 
titles  of  nobility  were  abolished.  The  political  discussions 
preceding  the  election  disclosed  a  great  diversity  of  ideas  and 
schemes  for  the  betterment  of  social  conditions.  The  relations 
of  labor  and  capital  and  the  fundamental  questions  concerning 
rights  of  property  were  much  discussed,  and  socialists  and 
anarchists  advanced  their  theories.  The  ministry  established 
banks  of  discount  and  public  warehouses  and  resorted  again 
to  paper  money.  Great  numbers  of  laborers  were  employed 
on  public  works,  the  list  including  by  the  end  of  April  nearly 
100,000.  On  April  27,  1848,  the  government  proclaimed  the 
abolition  of  slavery,  including  the  colony  of  Algiers.  The 
elections  passed  olT  peaceably  with  a  few  exceptions,  the  new 
National  Assembly  convened  on  ]\Iay  4  and  on  the  8th  ap- 
proved the  conduct  of  the  provisional  government.  On  June 
23  rioting  commenced  in  Paris  and  barricades  were  erected. 
No  very  well  defined  purpose  animated  the  rioters,  but  they 
were  led  by  agitators  who  opposed  the  measures  of  the  As- 
sembly, and  a  great  number  of  needy  laboring  men  followed 
them.  Serious  conflicts  ensued,  continuing  through  the  24th 
and  25th,  when  the  rioters  were  finally  overcome  by  the 
troops.  More  than  1500  persons  were  killed  and  2500 
wounded  in  this  conflict,  which  was  wholly  wanting  in  good 
results,  and  was  followed  by  the  arrest,  imprisonment  and 
trial  of  a  great  number  of  persons  who  took  part  in  it.  It 
is  encouraging  to  note  that  the  days  of  summary  and  bloody 
punishments  were  over,  some  were  transported  and  some  im- 
prisoned after  trial,  but  none  were  executed.  On  Nov.  4, 
1848,  the  Assembly  completed  its  work  in  the  adoption  of  a 
new  Constitution,  which  was  read  to  the  people  in  the  Place 
de  la  Concorde  on  November  12.  It  provided  for  a  President 
to  be  elected  for  four  years  by  the  people  and  ineligible  to  re- 


648  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

election  till  after  ifoiir  years  more.  The  iVssenibly  of  750 
members  was  to  sit  in  a  single  body  with  power  to  choose  a 
council  of  state  to  hold  for  a  term  of  six  years,  and  to  draft 
all  laws.  Magistrates  were  to  be  named  by  the  executive 
power,  mayors  by  the  town  councils,  and  justices  of  the  peace 
elected  by  the  people.  Among  the  clauses  of  the  Constitution 
exhibiting  an  advanced  appreciation  of  the  obligations  of  the 
state  to  its  weaker  members  and  to  the  outer  world  were  the 
following:  "The  French  Republic  respects  foreign  nationali- 
ties ...  it  will  never  employ  its  powers  against  the  liberty 
of  any  people."  "The  republic  should  by  fraternal  assistance 
insure  the  support  of  its  needy  citizens  either  by  procuring 
them  work  to  the  extent  o:f  its  means  or  by  giving  the  means 
of  existence  to  those  who  are  unable  to  work  and  have  no 
family."  The  duty  of  the  state  to  furnish  education  was 
recognized. 

The  election  was  fixed  for  Dec.  10,  1848,  and  resulted  in 
the  choice  of  Louis  Napoleon  Bonaparte  as  President.  On 
December  20  he  took  the  oath  of  office,  professing  devotion  to 
the  cause  of  liberty  and  the  principles  of  the  republic.  The 
Constituent  Assembly  held  its  last  session  on  May  27,  1849,  ^^^ 
the  new  Legislative  Assembly  opened  on  the  next  day.  Louis 
Napoleon  began  his  career  as  President  by  overturning  the  lit- 
tle Republic  of  Rome,  which  had  driven  out  the  Pope,  and  re- 
storing him  to  his  temporal  possessions,  in  violation  of  the 
Constitution.  On  March  15,  1850,  the  Assembly  passed  an 
educational  law  which  gave  to  the  Catholic  clergy  the  principal 
supervision  of  primary  schools.  The  election  law  was  chang- 
ed so  as  to  require  a  three  years'  residence  to  qualify  a  voter. 
This  disfranchised  a  large  portion  of  the  laborers.  On  Dec. 
2,  1 85 1,  Napoleon,  having  gathered  about  himself  and  placed 
over  the  army  men  on  whom  he  could  rely,  caused  the  arrest  of 
sixteen  of  the  most  prominent  members  of  the  Assembly, 
without  any  lawful  pretext,  and  issued  a  decree  and  three 
proclamations.  The  decree  dissolved  the  Assembly  and  re- 
stored universal  suffrage.  Paris  was  declared  in  a  state  of 
siege.  One  proclamation  accused  the  Assembly  of  plots  and 
appealed  to  the  people  to  adopt  a  new  form  of  constitution, 


FRANCE  649 

the  leading  points  of  which  were:  First,  A  President  chosen 
for  ten  years ;  second,  Ministers  responsible  to  the  President ; 
third,  A  council  of  state  to  prepare  laws  and  discuss  them  be- 
fore the  legislative  body ;  fourth,  A  legislative  body  elected  by 
universal  suffrage  to  discuss  and  pass  laws;  fifth,  A  Senate  to 
guard  the  Constitution  and  public  liberty.  To  the  army  a 
flattering  proclamation  was  issued,  demanding  passive  obedi- 
ence to  orders  and  assuming  full  responsibility  to  the  people 
for  all  his  measures.  The  third  proclamation  was  by  the 
prefect  of  police  warning  all  that  attempts  at  revolt  would  be 
severely  repressed.  The  Assembly  was  forcibly  prevented 
from  again  convening.  Though  the  Constitution  gave  the 
supreme  court  power  to  call  a  grand  jury  to  try  the  president 
in  case  of  high  treason,  no  action  was  taken  because  of  "the 
material  obstacles  to  the  execution  of  any  decree  that  might 
be  issued."  Attempts  at  resistance  to  Napoleon's  usurpation 
of  power  were  made  at  Paris  and  throughout  the  provinces, 
but  they  were  mercilessly  crushed.  In  Paris  some  barricades 
were  erected,  but  the  people  were  not  able  to  hold  them  against 
the  army,  and  those  offering  resistance  were  mercilessly  slaugh- 
tered. As  the  resistance  was  overcome  great  numbers  of 
arrests  were  made,  and  while  the  guillotine  was  not  again  set 
actively  at  work,  there  were  many  arbitrary  orders  of  trans- 
portation and  imprisonment  without  any  observance  of  legal 
forms.  Hostility  to  the  usurper  was  an  offense  punished  by 
his  emissaries  at  discretion.  The  election  held  on  December  20 
and  21  resulted  in  an  overwhelming  endorsement  of  the  usur- 
pation. On  Jan.  14,  1852,  Napoleon  promulgated  a  new  Con- 
stitution. It  began  with  a  "recognition,  confirmation  and 
guarantee  of  the  principles  proclaimed  in  1789,"  but  "The  gov- 
ernment of  the  French  Republic  is  intrusted  to  Prince  Louis 
Napoleon  Bonaparte  for  the  term  of  ten  years,"  who  was  made 
responsible  to  the  French  people.  The  president  was  given 
command  of  the  army  and  navy,  power  to  declare  war,  make 
treaties  and  alliances,  fill  offices  and  make  rules  and  regulations 
for  the  execution  of  the  laws.  Justice  should  be  executed  in  his 
name  and  he  alone  could  issue,  sanction  and  promulgate  laws. 
All  public  functionaries  must  swear  allegiance  to  him.     "The 


650  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

wheel  within  the  wheel  of  the  new  organization  will  be  a  state 
council  of  from  forty  to  fifty  members,  chosen  and  revocable 
by  the  president  of  the  republic,  discussing  the  laws  in  private 
session,  then  presenting  them  for  the  approval  of  the  Legis- 
lature." The  Legislature  was  to  consist  of  262  members, 
chosen  for  five  years  by  universal  suffrage,  to  vote  on  laws 
and  taxes.  The  Senate  was  composed  of  eighty  members, 
liable  to  be  increased  to  one  hundred  and  fifty,  chosen  by 
the  president,  except  that  cardinals,  marshals  and  admirals 
were  senators  v-irtiUe  officii.  The  president  might  give  sena- 
tors an  income  of  30,000  francs.  The  senate  was  to  oppose 
the  promulgation  of  laws  contrary  to  the  Constitution,  to  mor- 
ality, religion,  etc.  All  mayors  were  chosen  by  the  executive. 
There  was  no  guaranty  of  liberty  of  the  press  or  security  of 
the  person  against  arbitrary  arrest.  The  new  constitution 
created  a  despotism  based  on  a  written  constitution  and  uni- 
versal suffrage.  The  new  government  closed  many  of  the 
schools  and  changed  the  faculty  of  the  university  and  the 
course  of  study.  On  the  other  hand  its  energies  were  devoted 
to  the  development  of  industrial  enterprises  and  commerce. 
Railroad  companies  were  organized  and  roads  constructed. 
Banking  institutions  W'Cre  organized  and  the  Bank  of  France 
grew  in  importance.  November  20  and  21  the  people  restored 
the  Empire  with  Napoleon  as  hereditary  ruler  under  the  title 
of  Napoleon  III  by  a  nearly  unanimous  vote.  March  27,  1854, 
the  war  with  Russia  broke  out  with  the  somewhat  novel  com- 
bination of  Turkey,  France  and  England  as  allies  against  Rus- 
sia, while  Austria  armed  but  remained  neutral.  This  strange 
combination  prosecuted  a  war  which  cost  France  the  lives  of 
95,000  men,  besides  those  who  lingered  on,  suffering  from  the 
effects  of  wounds,  exposure  and  disease,  and  from  which 
France  gained  nothing. 

On  May  3,  1859,  the  emperor  announced  to  the  Chambers 
that  Austrian  troops  had  invaded  Piedmont  and  proclaimed 
that  Austria  must  rule  to  the  Alps  or  Italy  be  free  to  the 
Adriatic.  A  brief  campaign  resulted  in  overwhelming  defeats 
for  the  Austrians,  followed  by  a  peace  quickly  concluded 
by  Napoleon,  by  which  Piedmont  gained  Lombardy  at  the 


FRANCE  6si 

expense  of  the  cession  of  Nice  and  Savoy  to  France.  This 
war,  although  bloody  while  it  lasted,  ended  July  8.  It  gave 
Napoleon  prestige,  restored  to  France  a  part  of  its  natural 
territory  and  imparted  an  impulse  to  the  idea  of  Italian  na- 
tionality and  unity,  which  soon  resulted  in  the  union  of  the 
whole  peninsula  under  the  Sardinian  king  and  the  expulsion 
oi  the  Austrians.  Operations  in  China  and  Algeria  were  also 
productive  of  the  extension  of  French  power,  but  the  attempt 
to  place  Maximilian  on  the  throne  of  Mexico  during  the 
civil  war  in  the  United  States,  cost  that  unhappy  prince  his 
life,  along  with  that  of  many  thousand  others,  and  brought 
disgrace  on  the  empire.  Neither  of  these  wars  was  long  or 
very  exhausting  to  hVance.  On  the  other  hand  the  peaceful 
activities  of  the  country  were  stimulated  under  the  reign  of 
Napoleon  as  they  had  never  been  before.  A  liberal  trade 
policy,  by  which  many  ancient  restrictions  were  abolished  and 
trade  with  foreign  countries  encouraged,  together  with  the 
development  of  shipping  interests  and  improved  means  of 
internal  communication  by  railroads,  canals,  and  wagon  roads, 
resulted  in  rapid  development  of  manufactures  and  domestic 
and  foreign  commerce.  Though  the  rule  of  Napoleon  III  was 
a  despotism,  it  was  a  despotism  based  on  the  popular  will  and 
with  energies  directed  toward  the  material  development  of 
France.  In  adapting  such  a  government  to  the  tastes  and 
prejudices  of  the  French  people  Napoleon  III  manifested  great 
tact,  and  on  the  whole  his  system  was  not  altogether  unsuited 
to  the  conditions  then  existing.  But  the  inevitable  attendants 
of  despotisms  are  corruption  and  injustice.  Arbitrary  power 
is  never  effectually  held  within  the  even  course  of  justice 
merely  by  a  sense  of  right.  The  unrestrained  power  to  act 
on  impulse,  without  external  restraint,  inevitably  results  in 
departure  from  right  conduct.  There  is  also  a  strong  tendency 
for  the  official  instruments,  through  whom  the  despot  exe- 
cutes his  will,  to  adopt  systems  and  methods  of  administration 
which  are  essentially  and  inherently  bad  in  their  effects  on 
the  general  public,  but  agreeable  and  profitable  to  the  inter- 
ested supporter  of  the  throne.  Whether  a  realization  of  the 
growth  of  such  conditions  influenced  him,  or  other  motives. 


652  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  i860  he  granted  to  the  Legislature  pubHcity  of  debate,  free- 
dom of  speech  and  some  measure  of  control  over  the  expendi- 
tures of  public  moneys.  Legislation  for  the  betterment  of  the 
conditions  of  laboring  men  was  also  attempted.  While  look- 
ing to  the  people  through  universal  suffrage  for  his  support 
and  authority,  he  really  took  some  interest  in  the  welfare  of 
the  great  multitude.  In  1869  he  proposed  still  more  sweeping- 
reforms,  by  creating  a  ministry  responsible  to  the  Senate  as 
well  as  to  the  Emperor,  and  otherwise  materially  extending 
the  power  of  the  Legislative  Chambers.  In  accordance  with 
his  prior  policy  his  new  constitutional  measures  were  submit- 
ted to  the  people  and  approved  by  an  immense  majority  on 
May  8,  1870,  7,300,000  voting  for  to  1,500,000  against.  The 
particulars  of  the  changes  thus  eft'ected  in  the  framework  of 
the  government  were  rendered  unimportant  by  following 
events.  The  greatly  increased  power  of  the  Prussian  mon- 
archy, elevated  to  the  leadership  of  Germany  after  military 
successes  over  Austria,  caused  intense  popular  jealousy  in 
France.  Napoleon,  relying  on  the  reports  of  his  ministers  as 
to  the  condition  of  the  army  and  its  equipments,  rashly  and 
rudely  provoked  war  with  Germany,  without  any  real  ground 
for  a  quarrel.  War  was  formally  declared  on  July  19,  1870, 
but  here  the  weakness  of  his  despotism  became  evident  to 
Napoleon  and  to  the  world.  The  effects  of  corruption  and  in- 
efffciency  were  apparent  in  all  departments  of  the  military 
service.  Instead  of  a  state  of  readiness  for  immediate  action, 
it  was  found  that  the  army  was  in  no  condition  to  move. 
Arms,  wagons,  ammunition  and  equipments  of  all  kinds  were 
so  stored  and  distributed  as  to  be  unavailable  for  immediate 
service.  On  the  other  side  Germany  was  ready,  and  by  Sep- 
tember 2,  a  month  after  the  opening  of  the  campaign,  Napo- 
leon and  his  army  were  prisoners  of  war  as  the  result  of  the 
fatal  battle  of  Sedan.  On  Sunday  September  4  the  Legisla- 
ture met,  declared  the  Imperial  Government  at  an  end  and 
proclaimed  the  Republic.  A  provisional  government  with 
General  Trochu  as  President  was  formed.  Though  this  gov- 
ernment struggled  desperately  to  rally  the  forces  of  France 
and  resist  the  invading  host,  no  sufficient  amount  of  energy  or 


FRANCE  653 

effort  could  be  exerted  to  counterbalance  the  superior  prepa- 
rations of  the  Germans.  On  January  28,  after  enduring  the 
horrors  of  a  siege  with  its  vast  population,  Paris  surrendered 
to  the  invaders.  On  February  26  peace  preliminaries  were 
settled,  France  ceding  Alsace,  except  Belfort,  and  part  of 
Lorraine,  and  agreeing  to  pay  1,000,000,000  francs  as  war 
indemnity.  During  the  first  week  of  P^ebruary  elections  were 
held  and  a  new  Assembly  of  653  members  was  chosen,  which 
convened  at  Bordeau  on  the  twelfth  and  on  the  seventeenth 
chose  M.  Thiers  President,  who  named  an  able  ministry. 
When  Paris  surrendered  the  soldiers  of  the  National  Guard 
were  allowed  to  retain  their  arms.  After  the  terms  of  peace 
had  been  accepted  the  old  turbulence  of  the  Parisian  mob  again 
manifested  itself,  it  rose  in  revolt  against  the  government,  and 
the  National  Guard  joined  forces  with  it.  A  bloody  conflict 
followed,  but  this  time  France  dictated  to  Paris,  not  Paris  to 
France.  For  once  the  government  supported  by  the  provinces 
was  able  to  force  the  turbulent  city  to  submit,  though  not 
without  much  bloodshed  and  many  barbarities,  all  too  similar 
to  those  of  the  reign  of  terror. 

The  government  drifted  without  the  adoption  of  a  definite 
constitution.  The  Assembly,  which  had  moved  from  Bor- 
deaux to  Versailles,  was  monarchically  inclined,  but  legitimists, 
Orleanists  and  imperialists  were  not  able  to  combine.  In  May 
1873,  the  Thiers  government  sustained  a  defeat  in  the  As- 
sembly, as  a  result  of  which  Thiers  resigned.  Marshal 
McMahon  was  elected  to  succeed  him,  and  at  the  session  which 
began  in  November  1873  his  powers  were  prolonged  for  seven 
years.  The  matter  of  settling  the  constitution  dragged  on 
till  Feb.  25,  1875,  when  the  proposition  was  finally  carried  by 
a  majority  of  only  one  vote,  that  "the  President  of  the  Re- 
])ublic  is  elected  by  an  absolute  majority  of  votes,  by  the 
Senate  and  Chamber  of  Deputies  united  in  National  Assembly. 
He  is  appointed  for  seven  years,  and  is  eligible  for  reelection," 
and  also  that  the  power  of  dissolving  the  Chamber  should  be 
granted  to  the  President  of  the  Republic.  A  Senate  was 
created  consisting  of  three  hundred  members,  not  under  forty 
years  of  age,  one  third  to  be  chosen  every  three  years,  with 


6S4  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

powers  equal  to  those  ol  the  Chamber  of  Deputies  except  in 
matters  of  finance.  The  Senate  was  made  a  court  for  the 
trial  of  the  President  and  ministers  in  case  of  impeachment. 
The  Chamber  was  elected  by  universal  suffrage,  and  had 
power  to  propose  amendments  to  the  constitution,  which  must 
be  adopted  by  both  houses.  During  McMahon's  term  no  re- 
vision was  allowed  unless  proposed  by  him.  The  President 
was  the  executive  with  power  to  appoint  civil  and  military 
executive  officers,  nominate  the  Council  of  State,  dissolve  the 
Chamber  of  Deputies  at  any  time  with  the  consent  of  the 
Senate,  and  to  be  responsible  only  for  treason.  The  ministers 
were  made  responsible  individually  and  collectively  to  the 
Chambers.  Thus  the  existing  republic  was  established.  The 
assembly  ended  its  existence  on  March  7,  1876.  The  elections 
which  ensued  resulted  in  a  large  Republican  majority.  On 
June  25,  1877,  owing  to  a  controversy  between  the  President 
and  Chamber  of  Deputies  over  the  Ministry,  the  Chamber  was 
dissolved  and  an  election  ordered.  The  result  was  an  in- 
creased Republican  majority.  A  ministry  still  out  of  harmony 
with  the  majority  having  been  named  by  the  President,  com- 
posed of  persons  not  members  of  the  Chamber,  a  resolution 
passed  that  body  to  "hold  no  relations  with  this  Ministry," 
and  the  Chamber  refused  to  vote  the  Budget.  The  President 
found  it  necessary  to  yield.  In  January  1879  he  came  in  con- 
flict with  the  ministry  over  army  appointments,  which  he  al- 
lowed to  continue  longer  than  the  legal  limit,  and  the  President 
resigned.  Jules  Grevy  was  thereupon  elected  by  the  two 
Chambers  assembled  in  congress  as  his  successor.  Since  the 
establishment  of  the  Republic  the  energies  of  government  have 
been  directed  more  than  ever  before  toward  the  development 
of  an  orderly  system,  based  on  the  will  of  the  people.  Under 
the  law  of  1885  the  representation  is  on  the  basis  of  one  rep- 
resentative for  each  department  and  an  additional  one  for 
every  70,000  or  fraction  thereof  of  population,  and  the  depu- 
ties are  chosen  by  universal  suffrage.  The  Senate  consists  of 
three  hundred  members,  one-fourth  of  whom  were  at  first 
chosen  for  life  by  the  Assembly,  and  each  vacancy  among 
these  to  be  filled  by  the  Senate.     The  remainder  are  chosen 


FRANCE  65s 

for  nine  years  by  special  bodies  in  each  department  and  in  the 
colonies,  a  third  of  the  number  being  renewed  every  three 
years.  The  President  receives  a  salary  of  600,000  francs  per 
year  and  an  allowance  for  expenses  of  162,400  francs.  Sena- 
tors and  deputies  receive  9,000  francs  per  year.  The  allow- 
ance is  not  large  compared  with  those  to  past  kings  and 
emperors,  who  were  granted  12,000,000  to  Louis  Philippe, 
32,000,000  to  Louis  XVIII  and  his  family,  and  25,000,000 
besides  many  special  revenues  to  Napoleon  III.  At  the  head 
of  the  executive  department  is  the  president,  with  a  cabinet 
of  nine  ministers,  namely,  of  justice  and  keeper  of  the  seals, 
foreign  affairs,  interior,  finance,  war,  marine  and  colonies, — 
instruction,  ecclesiastical  affairs  and  fine  arts, — agriculture 
and  commerce,  and  public  works.  These  ministers  are  ap- 
pointed by  the  president,  but  responsible  for  their  acts  to  the 
chambers.  Aside  from  the  responsible  executive  and  legis- 
lative departments  of  the  government  there  is  a  Council  of 
State,  whose  business  it  is  to  give  advice  on  projects  of  law 
proposed  by  the  executive  or  the  chambers  and  on  adminis- 
trative regulations  and  by-laws.  It  also  exercises  jurisdic- 
tion over  administrative  officers.  All  disputes  arising  in 
matters  of  administration  and  all  complaints  against  admin- 
istrative officers  are  cognizable  by  the  Council,  whose  decision 
is  final.  The  composition  of  the  Council  is  a  president  and 
vice-president,  twenty-two  councillors  in  ordinary  service  and 
fifteen  extraordinary,  twenty-four  masters  cf  requests,  twenty 
auditors  of  the  first  class  and  ten  of  the  second,  a  general 
secretary  and  a  secretary  dii  contcntieu.v.  The  auditors  are 
appointed  after  competitive  examination,  the  ordinary  coun- 
cillors by  the  chamber  of  deputies  and  the  others  by  the  presi- 
dent. For  administrative  purposes  France  is  now  divided 
into  eighty-seven  departments,  subdivided  into  three  hundred 
sixty-two  arrondissements,  2,865  cantons  and  about  30,000 
communes.  The  chief  executive  officer  of  each  department  is 
a  prefect  appointed  by  the  president,  and  of  each  arrondisse- 
ment  a  sub-prefect.  A  prefect  is  charged  with  the  mainte- 
nance of  order,  and  for  that  purpose  is  at  the  head  of  the 
police  and  may  summon  the  militant  force ;  he  superintends 


6^,6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  collection  of  taxes,  issues  local  decrees,  appoints  and  dis- 
misses his  agents  and  is  charged  with  the  duty  of  executing 
the  orders  of  the  government.  There  is  also  in  each  depart- 
ment a  general  council  elected  by  universal  sufifrage,  and  a 
council  of  prefecture  nominated  by  the  executive.  The  busi- 
ness of  the  councils  is  to  assess  taxes,  manage  local  property, 
roads,  railways,  canals,  charitable  institutions  and  other  mat- 
ters of  local  interest,  decide  legal  questions  and  advise  the 
prefect  when  he  so  requests.  They  are  also  designed  to  place 
a  check  on  any  attempt  at  usurpation  of  power,  and  in  case  of 
a  coup  d'etat  they  must  immediately  assemble  and  choose  mem- 
bers of  a  new  assembly.  The  duties  of  the  sub-prefect  corre- 
spond in  the  arrondissement  with  those  of  the  prefect  in  the 
department,  and  he  is  assisted  by  a  council  of  the  arrondisse- 
ment, to  which  each  canton  elects  a  member. 

The  commune  is  the  administrative  unit,  with  a  mayor  at 
its  head  assisted  by  deputy  mayors,  varying  in  number  ac- 
cording to  population.  In  the  large  towns  the  mayors  are 
named  by  the  government  from  the  members  of  the  municipal 
council  elected  by  the  people.  This  council  has  powers  simi- 
lar to  those  of  the  departments.  The  mayors  are  registrars 
of  births,  marriages  and  deaths.  In  every  canton  there  is  a 
commissary  of  police,  who  acts  under  direction  of  the  mayor. 
In  towns  of  less  than  6,000  inhabitants  he  is  chosen  by  the 
people,  and  in  larger  ones  appointed  by  the  president. 

''At  the  foot  of  the  judicial  system  is  a  judge  de  paix,  judge 
of  the  peace,  in  each  canton  with  jurisdiction  in  civil  causes 
involving  200  francs  or  less  and  in  criminal  causes  where  the 
fine  cannot  exceed  fifteen  francs.  An  appeal  lies  from  judg- 
ments for  over  100  francs.  In  every  arrondissement  is  a 
primary  court  of  general  original  jurisdiction  in  civil  cases. 
An  appeal  lies  to  the  court  of  appeals  from  a  judgment  for 
more  than  1,500  francs.  There  are  twenty-six  courts  of 
appeals,  which  are  located  at  certain  chief  towns.  There  are 
also  tribunals  of  commerce,  whose  judges  are  chosen  from 
the  merchants  by  themselves,  in  the  principal  cities.  Their 
decisions  in  cases  involving  over  1,500  francs  are  also  subject 
to  appeal.     For  offenses  next  above  the  jurisdiction  of  judges 


FRANCE  657 

of  the  peace  there  is  a  special  section  of  the  tribunals  of  first 
instance,  called  the  tribunal  correctionncl,  to  which  appeals 
lie  from  the  judge  of  the  peace,  and  its  judgments  are  subject 
to  revision  by  the  court  of  appeals.  For  the  trial  of  felonies 
there  is  the  cour  d'assises,  consisting  of  three  judges  and 
twelve  jurors.  These  courts  sit  in  each  chief  town  in  the 
department  once  in  three  months.  In  criminal  cases  a  private 
preliminary  inquiry  is  conducted  by  a  judge  d' instruction,  who 
either  ends  the  proceeding  by  an  order  of  non-lieu  or  passes 
the  case  over  to  the  court,  to  be  thereafter  conducted  by  the 
public  prosecutor.  At  the  head  of  the  entire  judicial  system 
stands  the  Court  of  Cassation,  composed  of  three  divisions 
chambre  des  requetes,  chambre  civile  and  chambre  criminellc. 
It  reviews  the  proceedings  of  the  other  courts,  which  are  ap- 
pealed to  it,  and  corrects  errors  of  law,  but  does  not  review  the 
findings  of  fact.  When  a  cause  is  reversed,  it  sends  it  for  a 
new  trial  to  such  court  as  it  thinks  fit. 

There  are  also  military  tribunals,  maritime  tribunals  and 
councils  of  discipline  for  lawyers  and  other  professions.  An 
important  institution  is  the  cour  des  comptes,  consisting  of 
three  chambers  with  a  president  in  chief  and  a  president  of 
each  chamber,  a  general  procurator,  a  chief  greffier,  102  coun- 
cillors, twenty  auditors,  and  eighty-one  clerks,  which  super- 
vises the  accounts  of  all  government  officials.  One  of  the 
chief  functions  of  the  jnge  de  patx  is  to  bring  parties  to  an 
agreement  before  suit,  and  no  suit  can  be  brought  in  the 
courts  of  first  instance  till  he  has  made  an  unsuccessful  effort 
to  bring  the  parties  to  an  agreement. 

The  history  of  France  suggests  the  question  why  despot- 
isms have  lasted  so  long  and  republican  forms  of  government 
proven  so  short-lived.  Nowhere  else  have  higher  ideals  of 
the  relations  of  man  found  expression  than  in  France  during 
the  revolution  and  prior  to  the  advent  of  Napoleon,  yet  the 
republic  vanished  and  the  empire  followed,  supported  by  the 
people  before  whom  such  high  ideals  had  but  just  been  pro- 
claimed. Little  of  good  existed  in  the  system  of  Louis  XIV, 
yet  his  despotism  endured  to  be  continued  under  his  succes- 
sors for  the  greater  part  of  a  century.     His  was  a  system  of 


658  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

extorting  from  the  great  multitude  the  major  part  of  their 
earnings  to  waste  it  on  idle  courtiers  or  in  wars  for  the  glory 
of  the  king.  Not  only  were  the  multitude  deprived  of  the 
products  of  their  labors  through  theories  of  land  tenure  and 
taxation,  but  they  were  deprived  of  all  access  to  the  great 
store  of  knowledge  which  is  at  all  times  the  treasure  of 
greatest  value.  It  is  difficult  to  point  out  any  benefit  which 
the  Bourbon  dynasty  conferred  on  the  common  people,  save 
a  little  restraint  from  harming  one  another.  It  is  difficult  to 
point  out  moral  qualities  in  the  king  or  his  courtiers  which 
commended  them  to  the  support  of  the  people.  What  then 
influenced  the  multitude  to  submit  to  his  authority?  They 
and  their  ancestors  had  been  educated  through  many  centuries 
to  do  so.  The  doctrine  of  the  divine  right  of  kings  to  rule  and 
that  their  acts  as  rulers,  however  lacking  in  moral  quality, 
were  right  and  not  open  to  criticism,  had  been  taught,  not 
only  by  state  officials  of  all  classes,  but  by  the  clergy,  who 
came  in  close  contact  with  the  multitude.  A  great  system  had 
been  built,  to  which  all  classes  had  become  accustomed.  In 
matters  of  religion  the  multitude  looked  to  the  clergy  for 
guidance.  In  matters  of  state  the  king  was  all  powerful. 
The  great  toiling  multitude  of  peasants  were  too  ignorant 
and  too  poor  to  either  appreciate  the  injustice  they  endured 
or  make  any  concerted  effort  to  relieve  themselves  of  it.  The 
mechanics  and  laborers  in  the  cities  were  a  little  better  in- 
formed, but  still  without  organization  or  well  defined  common 
purposes.  The  so-called  higher  classes,  those  who  did  not 
work  but  profited  from  the  prevailing  conditions,  had  most 
knowledge  of  the  system  under  which  they  lived  and  least  in- 
clination to  change  it.  The  great  landholder  appreciated  the 
advantages  he  derived  from  the  system  of  land  tenure,  which 
made  his  tenants  his  servants.  The  courtier  rejoiced  in  the 
system  which  squeezed  revenue  from  the  impoverished  multi- 
tude, for  the  greater  the  sum  collected  the  more  there  was 
for  the  king  to  lavish  on  unworthy  favorites.  The  courtiers 
looked  to  the  king  for  their  incomes  and  knew  that  favors 
were  only  to  be  gained  by  subserviency  to  his  will  and  pleas- 
ing his  vanity.    Thus  at  the  court  of  France  the  art  of  pleas- 


FRANCE  659 

ing  came  to  be  studied  as  of  lirst  importance  with  little  less 
than  oriental  servility  toward  the  monarch.  The  clergy  as  a 
class  found  it  to  their  interest  to  uphold  the  prevailing  sys- 
tem, because  it  protected  them  in  their  vast  privileges. 
Whence  then  came  the  impulse  of  the  revolution?  From  the 
scholars  and  thinkers,  from  those  who  sought  truth  rather 
than  personal  advancement,  from  men  in  whatever  station  in 
life  who  had  consciences  keen  enough  to  be  moved  by  the 
abuses  of  the  times  and  sufficient  discernment  to  comprehend 
them. 

The  great  schools  were  centers  of  advanced  investigation. 
The  study  of  the  learning  of  the  Greeks  and  Romans  neces- 
sarily carried  with  it  knowledge  of  their  political  ideas,  and 
when  a  great  mind  like  that  of  Montesquieu  proceeded  to 
analyze  the  prevailing  system,  he  could  do  no  less  than  con- 
demn the  moral  basis  of  it.  The  art  of  printing-  had  come  to 
aid  in  the  preservation  of  knowledge  and  the  dissemination 
of  ideas,  and  while  rigid  censorship  of  all  publications  was 
maintained,  works  like  Montesquieu's  Spirit  of  Laws,  believed 
not  inimical  to  monarchical  institutions,  produced  profound 
effects  on  the  minds  of  students.  The  church  too  iurnished 
its  quota  of  reformers.  Not  all  the  clergy  were  content  with 
mere  ritual  and  revenue.  Many  sought  the  real  meaning  of 
the  religion  they  professed  to  teach,  and  perceived  how  ut- 
terly wanting  in  Christian  fraternity  was  the  despotism  under 
which  they  lived.  The  spirit  of  brotherly  love  and  self-deny- 
ing helpfulness  to  others,  which  pervades  the  teachings  of 
Christ,  was  altogether  wanting  in  the  court  and  among  most 
of  the  higher  clergy,  but  there  were  many  in  the  more  humble 
stations,  who  took  the  true  spirit  of  Christ's  teaching  to  heart 
and  sought  practical  application  of  them. 

When  Louis  XVI  convened  the  States-General  for  the  first 
time  in  175  years  to  aid  him  in  his  financial  difficulties,  he 
brought  together  moral  forces  which  had  been  gaining  strength 
through  those  years,  with  which  his  government  was  un- 
acquainted. The  abuses  of  the  kingly  government  were  per- 
ceived and  condemned,  and  the  true  principles  which  should 
govern  the  state  were  proclaimed.     No  representative  bodies 


6(jo  evolution  of  GOVERNMENTS  AND  f.AWS 

liave  ever  formulated  better  statements  of  the  true  purpcjscs 
of  goveniment  than  those  whicli  carried  on  their  dehberations 
during  the  stormy  period  of  the  revohition.  The  formula  of 
"Liberty,  equality,  fraternity,"  caught  the  hearts  of  the  multi- 
tude and  was  approved  by  the  consciences  of  many  who  had 
profited  from  the  old  regime.  How  then  came  it  that,  instead 
of  an  era  of  real  good  will  and  fraternity  among  men,  a 
reign  of  blood  and  terror  followed?  Surely  the  poison  did 
not  inhere  in  the  principles  advanced,  but  rather  in  the  lack 
oi  general  understanding  of  them  and  inability  to  suddenly 
substitute  a  just  system  for  one  of  arbitrary  power.  It  is  one 
thing  to  lay  down  the  fundamental  principles  on  which  all 
governments  and  laws  should  be  founded,  and  (juite  another 
thing  to  jjerfect  a  system  of  organized  society,  which  shall  be 
able  to  enforce  them  in  spile  of  the  opposition  of  the  selfish 
and  cunning.  Not  oidy  is  it  necessary  to  fcjrmulate  just 
principles  as  the  basis  of  the  social  structure,  but  also  to  place 
the  enforcement  of  them  in  hands  that  both  can  and  will  be 
just  and  do  right.  The  great  multitude  were  accustomed  to 
stand  in  awe  of  the  king  and  of  the  great  men  of  his  court; 
they  were  unaccustomed  to  participation  in  the  selection  of 
the  men  who  should  direct  public  affairs;  they  were  ignorant 
of  state  affairs  and  of  the  practical  methods  by  which  one  class 
of  officials  may  be  made  to  check  the  abuses  of  another.  They 
were  accustomed  to  the  abuses  of  unrestrained  power,  and 
the  first  impulse  naturally  was  to  overthrow  the  king  and  his 
courtiers  who  had  oppressed  them.  If  the  necessity  for  doing 
so  be  conceded,  it  was  but  the  lesser  task.  The  far  more  diffi- 
cult one  of  constructing  a  new  and  better  system  for  the  man- 
agement of  public  affairs  remained.  This  new  system  must 
be  fitted  to  the  then  existing  society  with  its  inherited  ideas 
and  prejudices.  The  leaders  of  the  revolution  made  the  grand 
mistake  oi  assuming  that  a  system  founded  on  lofty  ideals 
could  be  made  readily  acceptable  to  a  nation  whose  leading 
spirits  were  bitterly  hostile  to  it,  and  in  which  a  vast  majority 
were  too  ignorant  to  form  definite  opinions  or  to  give  ex- 
pression to  their  wishes.  The  government  did  not  fit  the 
people. 


FRANCE  66i 

In  a  despotism  the  habit  of  obedience  to  the  estabHshed 
authority  furnishes  the  bond  which  maintains  social  order. 
In  a  repubHc  there  must  be  a  feeling  of  general  confidence  in 
the  moral  purposes  of  those  placed  in  power,  and  a  prevailing 
disposition  to  tolerate  sentiments  honestly  entertained,  no 
matter  how  erroneous  they  may  appear.  The  leaders  of  the 
opposing  political  factions  soon  made  the  fatal  mistake  of 
imputing  bad  motives  to  each  other,  and  then  of  indulging  in 
threats.  The  reign  of  terror  was  preceded  by  mutual  distrust 
and  wild  threatenings.  The  talk  of  intemperate  leaders  pre- 
pared-the  ground  for  the  guillotine.  If  statesmen  could  be 
made  to  know  that  in  morals  the  crime  of  advocating  war 
and  wholesale  slaughter  is  far  greater  than  that  of  partici- 
pation in  it  by  those  who  become  soldiers  from  a  sense  of 
duty,  there  might  be  hope  for  the  peace  of  the  world.  In 
France  there  was  distrust  by  one  faction  of  another,  then 
threatenings  then  bloody  butcheries.  The  principle  was  simi- 
lar to  that  on  which  the  more  excusable  wars  come  about, 
mutual  distrust,  fear,  hatred  and  then  open  violence.  The 
wars  instituted  by  rulers,  merely  to  gratify  their  ambitions, 
have  been  far  more  numerous  and  their  authors  far  more 
criminal.  The  most  pernicious  man  in  public  affairs  is  he  who 
advocates  violence  either  between  factions  at  home  or  with  a 
foreign  power.  Though  in  a  defensive  war  for  the  preserva- 
tion of  the  homes  of  the  people  against  either  a  foreign  in- 
vader or  a  domestic  oppressor  the  noblest  qualities  of  courage 
and  self-sacrifice  for  the  good  of  others  have  often  been 
displayed,  the  ordinary  business  of  the  soldier  is  to  fight, 
kill  and  make  desolate.  War  is  always  brutalizing  and 
demoralizing. 

There  were  leaders  of  the  revolution  who  did  not  teach 
peace,  concord  and  mutual  confidence,  without  which  there 
cannot  be  liberty,  equality  and  fraternity,  but  sowed  seeds  of 
dissension  and  advocated  bloodshed  as  a  remedy  for  social 
ills.  Here  was  the  mistake  which  rendered  a  republic  impos- 
sible in  their  time,  for  the  bloody  military  spirit  naturallv  and 
usually  leads  to  a  military  despotism.  Napoleon  was  the  in- 
carnati'Mi  'if  tlic  l)li»od\'  ideals  of  those  who  condemned  their 


662  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

countrymen  to  the  guillotine.  His  hypocritical  professions  of 
devotion  to  popular  rights  and  hatred  of  kings  and  tyrants 
caught  the  fancy  of  the  multitude  and  blinded  them  to  his  real 
qualities  and  purposes.  The  ideals  of  the  great  leaders  of  the 
assembly  and  convention,  though  generations  in  advance  of 
the  people,  were  not  wholly  lost  however.  Some  immediate 
advantages  resulted.  The  first  and  most  important  perhaps  of 
the  material  gains  came  from  the  breaking  up  of  the  great 
estates  of  the  nobility  and  a  vast  increase  in  the  number  of 
independent  peasant  proprietors.  The  extension  of  the  edu- 
cational system  so  as  to  greatly  increase  the  number  of  chil- 
dren taught  was  perhaps  of  equal  or  even  greater  permanent 
value,  and  the  propagation  of  fundamental  principles  of  jus- 
tice and  human  rights,  though  for  the  time  productive  of 
many  ills,  exercised  a  profound  influence  for  future  good  not 
only  in  France  but  throughout  Europe.  Eighty  years  later 
these  principles  had  become  so  generally  understood  and  rec- 
ognized that  a  republic  was  established  and  has  since  been 
successfully  maintained. 

France  is  to  be  congratulated,  not  only  on  the  great  progress 
made  within  the  last  century,  but  also  on  the  possession  of 
the  high  ideals  of  the  revolution,  which  still  stimulate  to 
continued  improvement. 

Authorities 

Martin:     History  of  France. 

Guizot:     History  of  France. 

Taine :     French  Revolution. 

Taine :     The  Ancient  Regime. 

Thiers :    Consulate  and  Empire  of  Napoleon. 

Brissaud :     History  of  Private  French  Law. 


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